New developments in pre-trial hearing

Thursday June 6, 2012

THIS JUST IN: Judge decided will take up issue of possible state misconduct "post trial" - decided to go right into the Frye Hearing. That means at this point trial will *not* be delayed! The Frye hearing involves the 911 call and damaging to defense report by state-hired audio expert who claims it is Trayvon Martin who can be heard on the call screaming for help and even hears him say: "I'm begging you".

There were major developments in a pre-trial hearing for George Zimmerman on Friday that could have significant implications.

BRIEF SUMMARY: State accused of withholding from defense cell phone pictures and deleted text messages from Trayvon Martin's cell phone. The defense is asking for sanctions against the state, Judge Debra Nelson has yet to rule. Miami-based criminal defense attorney and former prosecutor Richard Sharpstein of Akerman told me that like all discovery violations the Judge can decide whether the failure to provide was inadvertent or willful and she can sanction anything from fines, to a trial delay, even dismissal, "but that's for egregious violations and only under the most extreme and rarest of circumstances."DO THE PICTURES/TEXTS EVEN MATTER?

The content does not matter as much as the withholding. In a hearing last week, Judge Nelson already ruled that text messages and cell phone pictures depicting alleged drug use, fights and guns are out of opening statements and can only be brought in during trial on a case-by-case basis. Local 10's legal analyst Lee Stapleton explained how the rules of evidence bar them because they are not relevant to the night of shooting. If Zimmerman knew Martin before the shooting, and had information that he perhaps liked to fight, hold guns, use drugs and so forth than it could have been relevant, but since he did not know that about Martin at the moment of the confrontation it is not. This explains why the state believes the defense released the texts and pictures with the intention to taint and/or prejudice the jury pool. Perhaps knowing they would not be allowed in but also knowing plenty of potential jurors would see them before trial.


According to Luis Calderon, former prosecutor and current Orlando criminal defense attorney:  "could result in a contempt hearing, a motion to disqualify the prosecutor and a bar complaint. Significant delays in the trial to say the least."

UM Law Professor Mary Anne Franks sees it differently, "Defense would have to show why the failure to turn over the pictures impedes its ability to be prepared for trial on the date set. Given that the judge has ruled that Martin's fighting/drug use can't be referenced in opening statements, it's not clear that the failure to release these photos should matter. Likely the defense really wants as much publicity for these photos and for prosecutorial misconduct as possible."

Meantime, Orlando-based criminal defense attorney Amir Ladan told me via text message: "If Mark [O'Mara] can establish that the State has not disclosed the evidence in a manner that allows their forensics expert to extract and analyze the data, it certainly could give rise to the judge granting the previously denied motion to continue so they can be adequately prepared for trial. Prosecutors are held to very high standards. If it's established that they were playing hide the ball with evidence or other discoverable material, it certainly undermines their credibility in the eyes of the court. Prosecutors must always conduct themselves so as to be above reproach."

Jury selection is scheduled for Monday. Zimmerman faces 2nd degree murder for the shooting death of Trayvon Martin which he claims was in self-defense.

George Zimmerman appeared in court today, sitting silently and stoically as attorneys for both sides rattled off arguments at the start of what is expected to be a two-day hearing in Sanford.

His legal team will be asking Judge Debra Nelson to bar state prosecutors from using certain terms that they deem are racially-charged, inflammatory and disparaging to include "profiled", "vigilante" and "wannabe cop."

She is also expected to make a crucial decision regarding a 911 call that captured the voice of someone screaming in the background moments for the sound of one gunshot. Question is: who was it? Zimmerman or Martin?

This has become a central piece of evidence. Legal analysts tell me who the jury believes is crying for help could be a deciding factor in this case…that's if they hear it.

While some experts have said they can't tell whose voice it is, the state found Forensic Acoustics Consultant Alan R. Reich who produced a report that not only claims the voice heard crying in the background is definitively Martin, but added that he can make out the late teen saying "I'm begging you" and Zimmerman making a "seemingly religious proclamation "These Shall Be" which he added is, "reminiscent of an evangelical preacher."

You can probably understand why the defense wants this report barred from the trial, we'll have to wait and see what the Judge thinks later this afternoon or tomorrow morning.