FLORIDA V. GEORGE ZIMMERMAN : TRAYVON MARTIN ALREADY HAS THREE STRIKES AGAINST HIM ON THE ROAD TO AN UNFAIR TRIAL

Los Angeles, California

August 9, 2013
(Today's date)

June 27, 2013
(Original date)

*(Denotes new information added to the original blog)

**UPDATE (Denotes NEW information added to and AFTER the original blog)

The second degree murder trial of George Zimmerman for the death of Trayvon Martin has just begun and Martin has three srikes against him already in his in absentia request for a fair trial. And, yes, although Trayvon Martin is the deceased victim of the killing at the hands of George Zimmerman, he also has a right to a fair trial. And the way things are looking, he's headed down the road towards an unfair trial :

First, strike one, the trial judge, Debra S. Nelson, rules that the prosecution can't use the term "racial" profiling. It can use the term "profiling", but only in reference to factors other than race, e.g., age or clothing. This strike is highly prejudicial to the deceased Martin (although Zimmerman successfully argued that it was prejudicial to him as well) because this is the crux of the prosecution's case. That is, the prosecution's central argument (as I see it) in charging Zimmerman with second degree murder, as opposed to manslaughter, is that Zimmerman intentionally killed Martin because of racial animus, and because Zimmerman didn't know Martin, the prosecution is arguing (I believe) that the racial animus stems from "racial profiling" or reacting to and/or approaching Martin simply because Martin was black and wearing a "hoody", which began at the moment Zimmerman discovered that Martin was Black.

If Martin was white under the same circumstances, the State of Florida might not have charged Zimmerman at all or if it did charge him, it would likely have only charged him with manslaughter. Therefore, race, necessarily, is a part of the case and a part of the trial. Yet, the trial judge, in her ruling, seems to be attempting to keep race out of the case and the trial. In any event, that's what her ruling has done or does (for future proceedings).

Zimmerman, through counsel, asserts that use of the word or term would be prejudicial to him, in terms of the affect on the jury. Judge Nelson bought this argument and excluded use of the word "race" as a type of profiling. Of course the term racial profiling may be prejudicial to Zimmerman, but, the entire trial is prejudicial to Zimmerman, because the entire trial is about racial profiling. So, is the State of Florida going to exclude the trial too, because it's prejudicial to Zimmerman? I think not, but excluding use of the term "racial profiling" is close to it. Moreover, even if the term is prejudicial to Zimmerman, as a matter of evidentiary law (for all of my lawyer readers), it is "more probative than prejudical".

I think prohibiting the government from using the term "racial profiling" is a gross abuse of the judge's discretion. So gross that the government SHOULD APPEAL THIS DECISION TO AN APPELLATE COURT. While ordinarily pretrial issues are not appealable during trial and must await the trial's end, this is a criminal trial, and if Zimmerman is acquitted at the end of trial, the government will not be able to appeal, so it will be too late. So, if the government is going to try and have this ruling reversed, it must do it now. Again, I believe that this is the government's central and most significant argument in the case, especially for charging Zimmerman with second degree murder, so if the government cannot argue this, "racial profiling", in my opinion, that's their case.

However, the State of Florida hasn't helped its case by conceding and arguing, "That is not a racially charged term unless it's made so, and we don't intend to make it a racially charged term.... We don't intend to say he was solely profiled because of his race". L.A. Times, "Judge in Zimmerman trial limits racial references", June 22, 2013. I may be wrong but I thought that's precisely what the government's case was all about, racial profiling. I admit, with this last passage by the prosecution, I'm confused. In my opinion, it's a mistake on the part of the government if their main or principle argument is not racial profiling, in charging Zimmerman with second degree murder. And, if they intend to charge Zimmerman with racial profiling, they must appeal the judge's decision immediately. If the State is not charging racial profiling, they need not appeal of course, but (based on my understanding--and I could be wrong regarding Florida law) if Zimmerman is acquitted, they won't be able to appeal. But, I haven't studied Florida law regarding the State's appellate rights in a criminal case, so I may be speaking out of place.

Second, and strike two, judge Nelson has barred the State from introducing and relying upon expert testimony regarding identifying and distinquishing the voices and screams on the 911 tape that captured Zimmerman's and/or Martin's voices during the physical confrontation and engagement between Zimmerman and Martin. "In her ruling, Nelson held that the 911 tape could be played in court, but that prosecutors would not be allowed to use the audio experts to identify the screams as Martin's voice." L.A. Times, "Zimmerman trial judge bars experts", June 23, 2013. It seems to me that voice experts are no different than handwriting experts, and handwriting experts are allowed to testify as to a person's handwriting as a matter of course (assuming as the prosecution argued that the science was found to be reliable, and I believe it has been). So, again, I think it was an abuse of the court's discretion not to let the experts testify, and its a second strike against Martin towards an unfair trial for him.

Finally, and the third strike against Martin, Zimmerman has received basically an all white female jury (with one juror being "non-white"). I'm sure Zimmerman is satisfied with this jury (although Zimmerman has identified himself as Hispanic, this will probably be one of those occasions when a Hispanic person finds it beneficial to characterize or label himself as white--so for the purpose of the jury Zimmerman has obtained, he likely considers himself white, thus, he has acquired a jury of his peers), but, I don't think it looks good for Martin. It certainly isn't a jury of Martin's peers. And, in a racially charged case such as this one, those seeking justice for Martin, as well as Zimmerman, must evaluate the jury makeup as well. This is the United States of America and race matters (even though there are those when its convenient try and pretend that it doesn't); otherwise, racial profiling wouldn't be an issue.

So, thusfar, things are not looking well for Martin.

*For my regular readers, I will be addressing the LAPD Dorner Report, I just haven't been able to obtain a copy of the report itself so far, only reports on the Report. Although, I know for sure, from some of the news reports that I've read, what my position is going to be. And, I think my readers know what my position is going to be.


**UPDATE--July 23, 2013

Well, the Zimmerman trial is now over. Zimmerman has now been found not guilty, by an all-white jury (one juror has been identified as a non-white or Hispanic female--but, likely for the purposes of this jury, she acted as a white female as well). Therefore, Trayvon Martin struck out at this trial, or put another way, on his road towards an unfair trial, he has arrived. He received an unfair trial. And, the all white jury was not the only or main reason (although it was a significant one).

*NOTE: The non-white juror has been identified as a Puerto Rican woman. I saw her and heard her speak in a television interview. In the passage above, I stated, "likely for purposes of this jury, she acted as a white female as well". I must now retract that statement; and I owe an apology to the non-white juror, and I do hereby apologize. I do not believe now that the juror "acted as a white female as well". I believe that she acted as a Puerto Rican, minority, or person of color female, or herself. And, I think it made a difference, even though it didn't change the result.

The main reasons Trayvon Martin received an unfair trial were biased judicial rulings and ineffective assistance of counsel on behalf of the State of Florida. The Justice Department should consider this in deciding whether to bring federal civil rights charges against George Zimmerman. Perhaps if Trayvon Martin had received a fair trial, the Justice Department's decision to bring a civil rights action against George Zimmerman would be less compelling.

But, because Trayvon Martin received an unfair trial and his case also meet the requirements for a federal civil rights or hate crime violation, the Justice Department must bring a federal criminal-civil rights complaint against George Zimmerman to provide both Trayvon Martin and George Zimmerman with a fair trial and a fair adjudication of their respective positions; otherwise, George Zimmerman will get away with murder.

I will address the biased judicial rulings and ineffective counsel issues in a separate blog, where I will more fully explain why the Justice Department must bring civil rights charges against George Zimmerman.