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    Group analysis of Zimmerman video

    Group analysis of Zimmerman video

    The video of George Zimmerman reenacting the events the night he shot Trayvon Martin has been released.

    I will analyze this video and the other evidence (including lie detector video and audio police statement) just released by the defense, but I don’t have time right now, so perhaps we could do a group analysis.  Post in the comments.

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    BannedbytheGuardian | June 21, 2012 at 11:47 pm

    Which case gets to court first -this or the 12 year old murderer ?

    Luckily for Florida the Zombie got shot dead or there would be 3 high profile cases involving blacks & Hispanics.

    I guess this is putting “hanging chads” down the Google Florida Hall Of Fame list.

    Paper crimes never beat out some good ole murders.

    Hi Ragspierre,

    Professional difference of opinion on the comments above.

    I think that there’s enough there to question Trayvon Martin’s Mother, Father or Father’s Girlfriend on the stand (you know Corey is going to put them there) as to whether or not Trayvon had a habit of purchasing Cough Syrup (certain types of which are appropriate for the “Lean” drug mixture). Also, asking them about Trayvon’s drug use is entirely fair game and if they say “no” that opens the door to prove it via all the other evidence.

    Trayvon’s self-described drug use is obviously relevant to the case, as that was one of Zimmerman’s first statements on the 911 tape as to Martin’s condition.

    [Criminal Procedure Discussion]

    If Angela Corey is smart, she will make a Motion in Limine to try to prevent Zimmerman’s attorney from talking about Trayvon’s Drug use, which should be loudly objected to at the time by Zimmerman’s attorney.

    Since the Judge gets to make the decision if it is relevant and non-prejudicial (the drug use is both) and whether or not it comes in, he will be “on notice” that this stuff exists, and it will give him a basic refresher in “drug culture” and use of Social Media by young druggies.

    If Corey is granted the Motion, it behooves Zimmerman’s attorney to bring it up the topic at trial, set up the question, force Corey to object based on the Limine Motion, and then for Zimmerman’s attorney to cross-object to the Motion in Limine itself (thus preserving error for appeal and strengthening the argument at the Appeal Court level because ALL that discussion from the Limine Motion will be part of the record.

    [End Criminal Procedure discussion]

    Yes Angela Corey will scream bloody murder in an objection if it comes up trying to say “you’re putting the victim on trial” and that is the ENTIRE point, because Trayvon’s motivations and actions are the entire basis of a self-defense strategy.

    There’s WHOLE bunches of data which says that Trayvon was at least mentally compromised from prior drug use if not actually ON drugs at the time of the alleged attack on Zimmerman, including but not limited to:
    * the convenience store recording (where he’s swaying and unsteady),
    * the autopsy (intimating brain and liver damage from consistent drug, prove it via expert testimony),
    * the screenshots of the Social Media (and subpoenaing the other druggies to testify, no 5th Amendment Privilege and not inadmissible Hearsay),
    * the educational records of his punishment for drug residue in his backpack,
    * prior violent actions at school for which punishment was instituted,
    * the possession of two of the three ingredients of the “lean” mixture at the time of the attack,
    * the timetable (res ipsa loquitur) due to temperature and atmospheric conditions as opposed to how Trayvon was dressed.

    Are there going to be some procedural hurdles and objections to overcome? Sure. But I don’t think it’s nearly as unlikely as you that this all comes into the trial and the main discussion becomes whether or not Trayvon was intoxicated at the time of the alleged attack on Zimmerman for which Zimmerman shot him.


       
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      Ragspierre in reply to Chuck Skinner. | June 22, 2012 at 11:14 am

      Chuck, I appreciate your analysis, while disagreeing strongly with some of it.

      First, you can’t get past the Martin drug screen in autopsy.

      Second, if I were Corey, I stipulate that Martin used marijuana. BFD. On the night in question, he was not intoxicated, as I understand the legal definition. The science of THP intoxication does not support aggressive behavior…sort of the opposite, as I understand.

      If you are found with a lighter and rolling papers, would you think you could be prosecuted for marijuana possession? I hope not. So, Skittles and a soft drink opens the door to “Lean”? Naw. Probative/prejudicial analysis makes that silly, IMNHO.

      Is the science around “Lean” well enough established to survive a Daubet challenge? I dunno, but I doubt it.

      Now, where I think there is an opening here is the “self-defense hearing”, which is a procedure I don’t well understand, and could basically change some of the procedural problems with the whole “Lean” ambit.

      The social media stuff is several kinds of cans of worms, as you know. Worst is that it is pure hearsay, and I don’t see an exception. But authenticity, reliability, etc., too.

      But a lot of what you say has merit. Would you, as O’Mara, invest a lot of resources on this?


         
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        JackRussellTerrierist in reply to Ragspierre. | June 22, 2012 at 12:22 pm

        If Corey stips to pot, the defense can bring in his other drug use. Further, the the entire autopsy findings are fair game. Martin had signs of early brain damage. The jump to “lean” use, considering the ingredients and his purchases, is a short one. Since the prosecution’s entire case turns on who was where and who was doing what leading up to the shooting, no judge is going to keep that out unless he wants any resulting conviction overturned before the ink is dry on the verdict slip. Look back at the kinds of things the defense was allowed in in the Casey Anthony case, such as completely unsubstantiated charges of sexual abuse against her father that supposedly took place years before Caylee was even born.

        Hi again Ragspierre,

        I don’t think that O’Mara should invest a lot of resources in this particular line, but I think that it is important enough not to be ignored either. It’s definitely a useful tool to impeach both the parent-figures on their credibility about their son being an “innocent” child or a “little angel” and on destroying Prosecutor Corey’s characterization of the events as they unfolded.

        Regarding the drug screen, my guess is that the standard drug screen doesn’t test for DXM levels or the chemical substances it breaks down into (because it’s a legal substance). Since the tox screen wouldn’t be looking for it, the screen would read as “clean.” Knowing what the DXM levels were in Martin’s blood at the time of death might yield a defense path, and would likely be worth testing a portion of the remaining blood (if any) for levels if possible. Again, if impossible or impracticable, simply make the res ipsa argument based on the convenience store video (Martin’s unsteadiness), the stuff Martin was purchasing and the timeline / environmental conditions that Martin had to be under the influence of ‘something’ to be acting in the manner he was and move on having planted the seed with the Jury.

        Regarding the purchase of the Watermelon Juice and Skittles: no, it wouldn’t be enough to get a conviction for drug use, but it would be enough to draw an inference with the Jury, which is all Zimmerman really needs to be able to walk. Ask the question of WHY Martin may have been going to to purchase those particular items at that particular time, under those particular condidions and suggest that Martin might have been trying to “re-dose” on “lean.” O’Mara’s task is to get the jurors to make that little step from the “well, Martin did drugs in the past” to “well, COULD Martin have been under the influence of a substance at the time of the altercation?” If the jury is asking themselves that question, Zimmerman should win.

        DXM intoxication isn’t like THC intoxication. Where THC supposedly makes you mellow, DXM is more like an “Acid” trip from what I understand. With DXM (as with Acid), you’re fine until you’re not, and you go from being fine to being psychotic basically in an instant depending on what the trigger is and what your particular reaction to that trigger would be under normal conditions. In Martin’s case, it would probably be a “persecution” complex from the drug sub-culture, where if being followed, he would think it dangerous. However the DXM intoxication might override the “I should run away to safety” impulse and replace it with both a paranoia about who was following him, a grandiose view of himself as invincible and thus able to take out whomever was perceived to be a threat, and what doing so would do to raise his own reputation. It would mess with the perceptions of reality, as well as explaining the “Ok, you got me. You got me.” response after being shot, because Martin’s brain wouldn’t be able to properly process and prioritize the information of the trauma, with the tramua resetting his brain to the “mellow” state but seeing as thinking of himself as invincible, would think “not a big deal.”

        I think that discussion of “lean” survives a Daubert challenge if you get the right expert in the hip-hop/thug movement and drug sub-culture. Enough rappers have died from “lean” use to make it known, and it is prevalent enough to get attention. The DEA stuff, while not dispositive on its own, defines it enough to probably allow it to survive a prosecution challenge against bringing up the discussion of if Martin’s behavior was consistent with either current intoxication or long-term abuse.

        Also, I think that if you get an expert in DXM abuse onto the stand you can then talk about the specific findings in the autopsy which deal with the specific brain damage and liver damage that was found in the Martin autopsy, and make a credible claim that it was caused by long-term DXM abuse. This might be successfully challenged under Daubert because the science is much weaker here, but probably worth an attempt, because even if it is overruled on Daubert, O’Mara has made his proffer, put it onto the record and preserved the potential error for appeal.

        The self-defense angle does change the burdens somewhat. Mostly because the defense is attempting to make the Jury understand why the (from the Jury’s perspective) Victim deserved or brought upon himself the actions of the Defendant. The Character of the Victim becomes important because it colors the perception of if the Defendant’s choices were reasonable at the time. Corey is going to have to attempt to make Martin look “peaceful” while O’Mara’s task will be to destroy that image. The Jury’s question becomes “was this a reasonable action for Zimmerman to take at the instant that he took it?” If they answer “Yes” then Zimmerman wins on Self Defense.

        To that end, ALL that thuggish social media contact (as well as subpoening Martin’s high-school contemporaries) becomes fair to use. It is either Martin describing his own actions in his own words (even if speaking to a third party) akin to an admission, or his contemporaries descriptions of Martin in their own statements, admissions of that 3rd party).

        Also, the Social Media stuff might be enterable into evidence to prove habit of Martin under the Florida versions of exceptions to hearsay as past 803(1) present sense impression of Martin; a past 803(3) a then-existing mental, emotional or physical conditions; or perhaps even a past 803(5) recorded recollection and definitely under an 803(21) reputation of character among associates or in the community. Originals of the social media entries should be retrievable via subpoena for up to 3 years from backups regardless of what Ben Crump has done to attempt to destroy them and cleanse the slate for Martin’s parents.

        So, is it worth a lot of resources? No. I don’t think so. But, I think there’s enough there to do an awful lot of damage to Prosecutor Corey’s case, which is going to have to hinge on the “Trayvon was a good kid” and “Zimmerman murdered him without provocation” characterizations.


           
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          Ragspierre in reply to Chuck Skinner. | June 23, 2012 at 10:51 pm

          Chuck, I’m sorry you took all that time to write that.

          Most, if not all, of it is ridiculous.

          Take just one item; there are no brain lesions associated with DXM use. The poor boob who wrote the “Year In The Life” blog post used as his primary source another (very NOT scientific) blog.

          http://www.erowid.org/general/about/about_crew.shtml

          http://www.erowid.org/chemicals/dxm/dxm.shtml

          Go down to “Health”. There you will find what “sundancecracker” failed to note; http://www.erowid.org/chemicals/dxm/dxm_health3.shtml. This is the author of the Olney Lesions BS retracting his BS.

          There is no science supporting any brain lesions attributed to DXM.

          Now, go to the Martin autopsy. You will find the histological examination of the liver found no abnormalities. Gross examination noted some fat deposits. Those are not scientifically significant indices of DXM abuse. Any medical expert would testify that they are caused by a raft of MUCH more likely actors, including genetics.

          The ONLY way O’Mara MIGHT hope to get ANY evidence of DXM use into evidence…and the ONLY real relevance it MIGHT have…would be to have a blood gas chromatography test run.

          That, of course, would be a double-edged sword; discovery works both ways, and O’Mara would be obliged to produce negative test results for intoxication. Even if “first plateau” intoxication was indicated, that is like THC or mild alcohol intoxication, from the resources Jacked provided.

          Also, note from the autopsy there is no colored liquid noted in the stomach contents.

          BTW, saying that very high doses of DXM are “disassociatives” is like saying a Vespa and a 747 are wheeled vehicles. It is true, but silly. Read up on “disassociatives”.

          A slightly skilled trial attorney would not allow the Martins to stray into “Travon was an angel” territory. A SLIGHTLY skilled defense attorney will only very gingerly attack the Martins unless they have clearly gone too far.

          If I were the State’s attorney, I’d inoculate the jury in opening. Trayvon Martin was a human being, blah, blah, blah. They would hear that the evidence would show X,Y, and some Z about Trayvon.

          You continue to ignore hearsay, reliability, and authenticity problems with the social media crap. You can’t, and they are deadly.

          Nor would it be enough to even introduce the testimony of someone who communicated with Martin about “Lean”. They CANNOT testify as to hearsay, either. Nor would Martin’s claims be at all reliable, since teenage boys OFTEN talk big. He’s not there to cross, so… No hearsay admitted, IMNHO…and experience.

          As I noted earlier, you would have to have “personal knowledge” testimony of Martin’s use of “Lean” from a COMPETENT witness.

          AND you would need physical evidence, supported by expert testimony to even get to relevance to the night in question. You are quite sanguine about Daubert challenges. Have you ever made or met one in court?

          The hearsay exceptions in Florida may be MUCH looser than they are under Texas or Federal rules, but I really doubt it. None of those you mentioned would work, unless Florida is a LOT more forgiving of hearsay. I don’t wanna drill that far into Florida case law, buy you may, if you wish.

          I am much less charitable about your “swaying” delusions from the store tape. Who are you going to get to introduce that during the case-in-chief? A cop would cut you to pieces. You COULD argue that in closing, but I think you’d be on very thin ice UNLESS you proved intoxication. Most juries in my experience don’t like you trying stuff like that. Remember, the State closes.

            Enh. Again, difference in professional opinion. I’m way out in Western Texas, so I understand what you mean about the hearsay exceptions taking some work to overcome. But, with the right angle of attack, I think that O’Mara can get around most, if not all, of them in this case.

            Your comment on gas chromatography and discovery being a double-edged sword are well taken. It does present a risk that Martins blood comes back inconclusive, or worse negative, for Dextrorphan (what dextromethorphan is metabolized into). But if it comes back distinctly negative intoxication is moot anyway and O’Mara should avoid it and focus on trying to sell Martin as merely violent by nature.

            Most of the cases I’m attached to from one standpoint or another are currently are TX Dept. of Family & Protective Services cases (CPS / APS) or Deceptive Trade Practices cases. Opposing experts on the issues involved are not uncommon.

            Daubert comes up in my line of work, but it’s usually on topics that are less theoretical and that have more research done. I’m sanguine about them because I’ve seen them done masterfully and I’ve seen them done poorly. That’s ultimately why I think that a drug culture expert probably survives a Daubert challenge but the autopsy discussion probably doesn’t due to lack of research / conflicting science on the topic of permanent brain damage from Excitotoxicity of NMDA receptors, not just the now disavowed Olney Lesions. As with so many other things in this case, it would have to be something that an autopsy examiner would have to be looking for, not something that would abnormally present on its own.

            If Martin were only drinking the liquid “Lean” mixture first, half of it would have cleared his stomach in 12 minutes from drinking, and it would have fully cleared his stomach within 2 hours. DXM has a long half-life and can last 6-10 hours. If Martin were dosed on it, he could have taken it 3 or more hours before and still have been at a reasonably high dosing level, thus the DXM containing contents of the stomach would have already emptied into the intestines and been absorbed. Also, the autopsy does note “400 milliliters of gastric fluid with food particles.” The autopsy is silent on the description of said fluid, which may or may not be relevant (I don’t know). Other than that, the autopsy report was pretty sparse.

            As for dissociative pharmaceuticals, I actually know quite a bit about them. It depends on how much DXM Martin consumed to determine where he was on the dosing chart. At 158 pounds (71.6675kg), Martin would have had to consume 1 8oz bottle of the proper type of Robitussin to get above a low 3rd plateau dose of 7.5 mg/kg (236ml x (15mg/5ml) = 708mg) (708 mg / 71.6675 kg = 9.8789 mg/kg). At this level, individuals can dissociate with the right triggers.

            As for the actual trial practice:

            Yes, Corey is going to try to inoculate the Jury (and she should). Yes, she will try to corral the parents from overly sanctifying their child and O’Mara should tread lightly as to not be attacking the “grieving parents.”

            That said, if O’Mara’s just bringing in the drug use to challenge credibility, hearsay isn’t an issue because O’Mara isn’t using it to prove truth of the matter asserted, but to challenge credibility of the witness as ignorant of their son’s own statements regarding his drug use. No hearsay problem at all.

            If O’Mara does want to prove the statements, then he does have some hurdles to overcome, but not insurmountable, and if denied, preserve them for error on appeal.

            Get the Social Media to provide a list of IP addresses from which Martin’s posts were made. Cross-reference it against Martin’s IPs for devices he had access to. Then eliminate other individuals from access to that device (did Martin have his own computer? If so, use all posts from that device only and ask the parents pointedly if they EVER used it). Subpoena copies of Martin’s hard drives for verification purposes.

            Also, while still having some verification problems, O’Mara might also be able to get in Martin’s social media statements as 804(3) statements against interest due to Martin exposing himself to criminal liability at the time Martin made them. Since it’s not being used to expose Martin (the declarant) to criminal penalty now 804(3)(b) is irrelevant as to clear indication of trustworthiness. Make Prosecutor Corey make the objection and then try to explain why those statements, which purportedly are her victim speaking, shouldn’t be evaluated by the jury as to Martin’s character.

            Any other individuals on the other sides of those conversations can testify as to their own interactions with Martin, as to what Martin said TO THEM. They’re not an “ear-witness” as my Civil Prof used to say, they’re the party to the conversation. Again, no hearsay problem because the other declarant (Martin) is unavailable. Also, like I said above, question the individuals under 803(21) as to Martin’s “reputation” in the community, and all Martin’s “Big Talk” comes in as Martin’s holding out of his own image to the community at large. Again, you can’t use it to prove Martin was on drugs at the time of the shooting, but you can use it to plant the seed with the Jury that Martin was a drug user and try to get the jury to make that step on its own.

            I don’t see the “personal knowledge” angle as being a big deal. Put the other end of the conversation witness on the stand, ask them “did Trayvon Martin ever discuss doing (insert names of drugs here) with you?” If they say yes, move on. If they say no, bring in all the social media interactions to prove it and let them deny that those are their words or that someone else was using their social media at the time and then get THAT person on the stand. Remind them that the penalties for perjury can be severe and that they’re under oath and somebody WILL crack.

            As for getting the swaying introduced, put the convenience store clerk on the stand. Have him testify to his personal knowledge of Martin’s behavior in the store, and if he can’t remember, try to make an 803(5) recorded recollection proffer to the witness of the tape to jog his memory of the night in question. Corey can then object, and we can get some very interesting jurisprudence on whether a video record of an event can classify as a “document” for the purposes of a recorded recollection in refreshing a witness’ memory.

            Yes, the State closes, but here’s where the issue is going to take a left turn from normal prosecution. As you said, the Defense isn’t saying “prove it” to the Prosecution. The Defense is saying to the Jury “Yes. Not only did i DO it, YOU would have done the same thing in my shoes, and here is exactly WHY.” The Convenience store clerk should be one of the FIRST witnesses that O’Mara puts on the stand after Zimmerman because he/she was one of the last persons to see Martin and can testify as to his/her perceptions of how Martin was acting / speaking (about 45 minutes?) before Martin was shot. The description of Martin’s actions will set up everything else. O’Mara can make the intimation that we know that Martin was attempting to get high on substances that might not normally show up during toxicity screens post-mortem. It’s probably the weakest argument if all the other reports come back inconclusive, but I think it should probably still be made, because it has a chance of providing proper context.

            Here, the defense doesn’t actually have to prove that Martin was on anything. They just have to provide the narrative that we know that Martin had been attempting to get high on legal chemicals that may or may not show up in a standard tox screen, had at least smoked marijuana recently, may have been attempting to get ingredients to get high again while out walking around, and was acting like he was under the influence of something as he was walking around, which is what drew the attention of Zimmerman in the first place. You set all the pieces in place and say to the Jury “Is it possible that Martin was high on an unknown substance at the time he attacked Zimmerman?

            At least that’s how I would structure it.


             
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            Ragspierre in reply to Ragspierre. | June 24, 2012 at 2:57 pm

            803(5)…in my experience…works every time it is tried. You can show the witness any damn thing if they answer, “Uhhh…yeah…”

            You CAN’T show it to the jury, however. Not unless you can get it into evidence.

            **Put the other end of the conversation witness on the stand, ask them “did Trayvon Martin ever discuss doing (insert names of drugs here) with you?”**

            Object; the question calls for a hearsay response. Further objection; relevance.

            **Any other individuals on the other sides of those conversations can testify as to their own interactions with Martin, as to what Martin said TO THEM.**

            The purest kind of hearsay I can think of, yes?

            **804(3) statements against interest due to Martin exposing himself to criminal liability at the time Martin made them.**

            Except Martin is not a party, and is not on trial. Maybe you know some case law respecting that, but the only application of it I’ve seen is when the statement was made by a party to the case.

            And maybe you could shoehorn an argument at closing that Trayvon was under the influence of some mystery substance.

            I’d happily slam your nose in the door with, “OK, ladies and gentleman; the Defendant wants you to believe Mr. Martin was on pixie dust when George Zimmerman shot him to death. Now, let’s be real, shall we? Have you seen any pixie dust evidence in this trial? Where was the Defendant’s pixie dust expert? Remember that testimony? I didn’t hear that, did you? Where was the toxicology report on pixie dust? Be sure to take that back with you to your deliberations. If you can’t find that in the evidence before you, don’t be surprised. There isn’t any. Not one shred. If this is all Mr. Zimmerman can come up with to explain his slaying of this young man, you know what you have to do. He cannot throw pixie dust in the air, and expect to fool you. You must find him guilty as charged.”

            Of course, it is ENTIRELY possible that O’Mara WILL get a blood sample tested, and come back with a positive. But that remains to be seen.


             
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            Ragspierre in reply to Ragspierre. | June 24, 2012 at 4:22 pm

            Coupla very quick points that occur…

            1. IF I got back a high-dose positive on DXM, I’d LEAN on Corey to dismiss immediately… Heh.

            2. One cause of fatty deposits on the liver is Corticosteroid use. I know next to nuthin’ about steroid abuse, but, given the “fight club” video, I’d damn sure want a blood test to look for any sign of that, maybe showing “roid rage”.

            3. The “fight club” thingy is a lot more promising, I think, as a defense show-and-tell. SOME evidentiary challenges, but readily overcome with some detective work.

            Cute with the LEAN comment. You actually made me lose my train of thought for a moment…. I concur, though.

            I know just enough about steroids to know that I don’t know enough to comment on it. I know that roid-rage exists. If that’s important to this case, it’s outside my wheelhouse.

            I think you’re right that the fight club thingy is more promising. I’m just not sure I would completely hang my hat on it alone. I would much rather also be able to say “not only was Trayvon Martin a violent punk, he may also have been mentally compromised.

            803(5) – If you show the convenience store clerk the video, and then he testifies, Prosecutor Corey will introduce the convenience store video FOR O’Mara. She won’t want the witness seeing something, and then testifying as to what he remembers without the Jury seeing it too and Corey suggesting that the Jury members to attempt to draw their own conclusions. That one is actually easy with how narcissistic Corey is.

            Ok, rephrase: (with witness on the stand) Did YOU (witness) ever discuss (insert name of drug here) with Trayvon Martin?

            Reply to objection: Your honor, we’re investigating what the witness on the stand discussed with the victim. Clearly it is not hearsay for the witness to discuss his own part of the conversation, and to put it in the context of what he was discussing at that time with the Victim and/or whether or not the victim responded. We’re not using it to prove the truth of the matter asserted, merely that Martin was a PARTY to the conversation and he did respond in some manner. The Prosecution is free to enter into evidence their victim’s side of the conversation to enlighten the Jury as to the Victim’s responses. Or, alternatively, we ask to enter the social media conversation after this witness is through to show Trayvon Martin’s responses were within the 804(3) hearsay exception as statements against his own penal interest.

            Reply to relevance: Further, using Trayvon Martin’s statements against his penal interest, the defense will show that there are certain legally sold substances which the victim was investigating and/or possibly using near the time of his death which might not show up during a standard toxicity screen which if the victim was under the influence of at the time of his attack upon the Defendant might otherwise explain the Victim’s behavior as well as the Defendant’s belief that the Victim was on drugs, as stated during the 911 call. It is relevant because it offers context as to what the Victim’s mental and physical state might have been and why the victim would be attacking the defendant so viciously as to cause the Defendant to have a broken nose, two black eyes and two gashes across the back of the Defendant’s head before the Victim decided to reach for the Defendant’s side arm.

            As for the 804(3) statements – Because of the weird procedural posture this case is in under self-defense law, even though Martin isn’t a party himself, Martin will be the subject of the entire hearing as either the victim or the attacker. As such statements Martin made himself and about his own prior actions will become relevant as to attempting to determine what state of mind Martin was in at the time of his death. Whether or not such intoxication actually does explain Martin’s behavior then becomes a question of fact which the Jury should specifically decide. I’ve seen 804(3) used to impeach non-party witnesses on credibility. Here what it would be used for is to impeach Martin’s overall character and paint him with that brush, by basically making him stand on his prior statements since he can’t be in the courtroom in person, even though you couldn’t use the statements themselves to prove conformity of action therewith at the time of Martin’s death.

            As for the pixiedust context, that’s the point of putting on a drug-culture expert once you have the other friends parts of the conversation, basically to translate. I think that O’Mara can actually get it in his case-in-chief. All this presupposes that O’Mara can get a blood sample to come back either positive or inconclusive for Dextromethorophan or Dextorophan. If it comes back clean, it’s moot.

            Here’s the order I would call witnesses in if I were O’Mara:

            Zimmerman (first) – he’s got to sell to the jury that he was being viciously attacked by Martin. If he can’t do that, he’s toast anyway. If he can, the Jury is GOING to want to know “why would Martin do that?” (because that’s the quintessential question all people want to know, and all attorneys hate).

            Convenience Store Clerk (second) – testify as to Trayvon Martin’s physical state when in the Convenience store. Again, if he/she can’t remember 803(5) recorded recollection, which Corey will then ask to be entered into the record so the Jury doesn’t wonder “what did the Defense show to the witness which got him to remember what was happening that night.”

            If both of those intimate that Martin was acting in any way intoxicated, the DEFENSE should bring up the toxicity screen, and then use to say “what other substances could Trayvon Martin have been experimenting with which might have caused him to behave in such a vicious manner?” The Defense will show that Martin had recently been experimenting with not only Cannabis, of which trace amounts were found in his system consistent with having smoked pot in the days prior to the attack, but also was discussing with his friends abusing other over-the-counter drugs in quantities far beyond normal doses.

            At this point, Corey will either object or she won’t, If Corey objects, Defense will make an offer of proof in the form of the testimony of the social-media friends and to Martin’s reputation in the community, because Corey will have opened the door to it. If Corey does not object, Defense should move to enter the social media conversations into evidence and discuss them as 804(3) admissions of the Victim since he isn’t able to testify to his own good character (yeah, that one is cold, but necessary).

            If necessary, use that to call the friends (third) to the stand to discuss THEIR OWN sides of the conversation with Martin. Start with “Please describe what you discussed when you were making social media posts with Trayvon Martin on X date(pick a date discussing drugs)?” Walk through the witnesses posts (not Martins). Ask the witness “did Trayvon Martin RESPOND to your posts and statements?” (force the witness to answer yes). “So you were discussing (insert name of drug here) and Trayvon Martin was responding to your statements?” (force the witness to answer yes).

            provide the written social-media posts, and then bring in Martin’s social-media documentation under 804(3). Either the friends admit it or you impeach the friends with it. Corey may even do this one FOR the Defense depending on who is on her witness list, but I doubt it.

            O’Mara then uses Martin’s posts to shoe-horn in a drug culture expert, discusses the slang and types of drugs Martin was discussing in his posts, what the potential effects and side-effects of said drug use could be, and if those drugs would appear on a standard corner’s toxicity screen. O’Mara uses the expert to set up the response to what Corey will claim is a clean tox screen: by intimating that the corner isn’t going to find a legal substance he wasn’t looking for. That then at least forces Corey to put her own expert on the stand and to make a statement as to what would show up or be findable in the blood.

            Again, that all assumes that the tox screen comes back inconclusive. If it comes back positive for DXM, this becomes a slam dunk defense. If it comes back negative, it’s all moot.

            It’s too bad I don’t live closer to you. It would be useful to sit down from time to time as colleagues so I could bounce trial ideas off of you for particularly difficult cases.


             
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            Ragspierre in reply to Ragspierre. | June 24, 2012 at 9:05 pm

            http://law.onecle.com/florida/evidence/chapter90.html

            Not being a criminal lawyer (is that redundant…criminal and lawyer?) I sure don’t know our rules to a T WRT criminal procedure and evidence. But Florida has some that appear pretty restrictive.

            I agree. It would be fun to get together and bash cases. One of the things I miss most being a solo is being able to bounce stuff off of someone down the hall. I also live in dread fear of getting blinkered on a case, which is easy to do because so much of civil litigation takes freaking YEARS! Good to have someone who pins your balloon from time to time.

            If I’m O’Mara, I have a blood test run, covering the waterfront ASAP. I also have my investigators out getting the predicates for the fight video’s introduction into evidence.


           
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          Ragspierre in reply to Chuck Skinner. | June 24, 2012 at 7:54 am

          Just a quick loop back on this from a jury charge standpoint.

          When I take on a case, I read the jury charge for the torts or other civil wrongs I’m dealing with, and work from there.

          Contra JackedRatTerrier, this case is nothing like the Casey Anthony case, and the testimony will not be as open as was her’s.

          There is no doubt that there was a homicide, and who committed it.

          The State has a very few burdens to meet here, not that those are easy to meet.

          Classically, Zimmerman has no burden. He’s innocent under the law.

          But here, he pretty much needs to prove he acted in self-defense.

          He could paint Trayvon as the cat-daddy pimp and drug king-pin of Miami (and the “expose” quoted here is just fantastic, stupid, and embarrassing), and that is irrelevant to his defense UNLESS he SHOWS, BY EVIDENCE, some connection to Trayvon’s actions that night. Otherwise, it is irrelevant to anyone’s burden. Part of the judge’s instructions would, I think, include that. Properly so.

          You CAN imply stuff to a jury, and they CAN infer opinions from it, but that has STRICT limits. You are not going to get away with inferring intoxication without PROVING intoxication.

          The “fight club” video I think is MUCH more fertile ground, and I really know very little about it. If I were O’Mara, that is where my investigations would be focused.

          Zimmerman’s best, most valuable asset was his credibility, which seems pretty good in the video. He gutted that.


         
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        Ragspierre in reply to JackRussellTerrierist. | June 23, 2012 at 9:44 am

        Oh, dear. Now you will be an “expert” on DXM, as you are on criminal defense.

        You poor old thing.

        You do know that DEA people are not “experts” except in a very, very limited realm, right? And that the Martin autopsy showed no signs of anything rationally (i.e., scientifically) connected to DXM use, right?


     
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    Twilliger | June 23, 2012 at 7:05 am

    No, but she should not have surpressed attempts to impeach Dubya for war crimes. She should have hero status among the right wing for that.


     
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    Twilliger | June 23, 2012 at 7:53 am

    One discrepancy in Zimmerman’s account is with regard to what he says he did after the police call. The distance between where his truck was parked and where he says he went is not that great. And he was already at least halfway there when he was still on the phone. “He ran” would have been said while he could see down the path between the townhomes. And he remained on the phone for a minute and a half after he said “He ran”. It was only a short distance to Retreat View Circle from where he would have been standing. And then a short walk back to Twin Trees Lane where he truck was parked. But there is two and a half minutes between when Zimmerman hangs up and when the 911 calls started. Even allowing for 30 seconds between when they started yelling at each other to when the calls started, the three and a half minutes that remain is plenty of time for Zimmerman to walk to Retreat View Circle and get an address and turn around and get back to his truck.


     
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    Twilliger | June 23, 2012 at 10:11 am

    You can see Zimmerman lying on the reenactment in order to take any “following Martin” out of his story. He says incorrectly that
    a) After stopping at the clubhouse in his vehicle, he only followed Martin after the dispatcher asked him if he could “get to somewhere where he could see him”.
    b) Zimmerman got out of his car when he saw Martin start to run. But in the enactment he incorrectly states that he got out because he had been asked for an address and he was trying to get one.
    c) Zimmerman claims to the detective that he needed to go over to the other street to get an address because “these are the back of the houses” as he points to the back of townhouses on his left, while it is clear that there is the front of a townhouse to his right that he could get an address from.
    d) You can see that there is too much time for his story to be true with respect to “just getting an address. He is on phone for another minute and a half after saying “he ran” which he correctly states occurred at the T in the sidewalk. A minute and a half is enough time to walk to the street he claims he was going to, get an address and walk back to his truck. After he hangs up, there is another 2 and a half minutes until the 911 phone calls start. Enough time for Zimmerman to have back in his truck and finishing off a couple of doughnuts. The “just getting an address” also doesn’t agree with his desire to have the police call when they got there rather than meet him by the mailboxes or his truck.

    He is clearly following Martin but is lying in order to


       
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      Twilliger in reply to Twilliger. | June 23, 2012 at 10:13 am

      … lying in order to avoid any guilt due to the fact that he got out of his truck armed and followed and did not return to his truck after being told they didn’t need him to follow.

      Nah. 120 seconds is a short period of time if you’ve just stopped from one mental task to another. The brain is still attempting to process information of what you were just doing. That being said, it’s entirely reasonable that a person would walk slower when turning around and retracing their steps instead of walking quickly and with purpose directly back.

      If anything, the time is just about right between the hang-up and the 911 calls for Trayvon to have attempted to jump Zimmerman and start beating his head into the pavement.

      Also Twilliger you’re showing your ignorance of self-defense practice. When carrying a concealed firearm, you don’t take it off and you NEVER leave it behind. You strap it on and you wear it until you take it off, usually with the rest of your out-door gear (like your shoes).


         
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        Twilliger in reply to Chuck Skinner. | June 23, 2012 at 8:10 pm

        Nah. You and George have some terrible problems with respect to “just looking for an address.” First of all, there was an address right by where he parked. Second of all, it wasn’t 120 seconds. He was on the phone for 90 seconds AFTER he was at the T in the sidewalk and said “He ran”. That makes it 210 seconds – or over three minutes between when he was halfway to his alleged destination and when the fight started.

        But even worse for his story. When he allegedly got the address he didn’t call back! The only purpose for getting an address would be to call and tell police since he claims he is getting the address because he couldn’t give them one when he asked. (But again, we know he is lying because there is an address right by his vehicle). But he claims he got the address and then walked back to his vehicle. So are we to believe that when the police got there, he was going to give them an address on another street from where they were standing. And then they were supposed to do something with that?

        Zimmerman strapped it on and he is doing all kinds of tap dancing in his reenactment trying to paint a picture of “not following”. If “strapping it on and following” is so copasetic to you, it ain’t to George.


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