Thursday, May 30, 2013

The Trayvon Martin case:
Circumventing the circus

ON TUESDAY, Florida Circuit Court Judge Debra S. Nelson sent a message to opposing counsel (especially the defense) about how things will be handled in her courtroom for the trial of George Zimmerman, accused of the 2012 second-degree murder of Trayvon Martin: When the trial starts on June 10, as scheduled, be prepared to bring the substance and leave the silliness at home.

Besides ruling that the start date wouldn’t be moved, as the defense requested, Judge Nelson ruled that the defense for Zimmerman won’t be allowed to open the trial with potentially damaging information about Martin’s alleged marijuana use and certain text messages and certain behavioral appearances — head fakes that have more to do with indicting the tropes of hip-hop as a cultural influence than anything else.

Judge Nelson’s ruling on the admissibility of Martin’s past as an opening gambit was one of 22 motions that she rejected, short-circuiting the defense’s attempt to in effect put Trayvon Martin on the stand, and setting the stage for a trial that, at this point anyway, appears to be on track to actually be a trial, and not a circus.

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Watching video of Judge Nelson in action in the courtroom, you come away with the idea that she’s disinclined to suffer fools gladly in this, what may be the most watched civil-rights-related murder trial in some time. There’s a drive in her public persona on the bench, a visible sense of purpose that suggests an intent to Get On With It, to stay away from dilatory bullshit that distracts jurors and the public from the issues at hand.

Nelson “has a reputation for working hard, being ambitious and imposing long prison terms,” Rene Stutzman of the Orlando Sentinel reported last August.

Stutzman quoted Isadore Hyde Jr., a Florida attorney, as saying "You don't mess around with her. I think her sense of justice, civility is such that she's going to make sure that this place, Seminole County, is not Mogadishu.”

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THERE’S been some speculation that, even those Judge Nelson has barred the comments from being admitted at the opening of the trial, she may allow this misinformation to be admitted later down the road. This isn’t likely to happen. It doesn’t make much sense to bar these existential speculations at the opening of a trial — when the principal arguments and rationales for defense and prosecution alike are being laid out in cosmic, comprehensive terms — and then allow them later on during the trial.

Such conjectures about Trayvon Martin’s personal life and habits will be no more corroborative, and no less speculative, a week or two into the trial than they will be at the opening — barring, of course, some direct casual connection between the teenager’s personal past and what happened to him the rainy evening of Feb. 26, 2012, when Zimmerman shot the teenager once in the chest point-blank with his 9mm Kel Tec semi-automatic seven-round pistol, between Twin Trees Lane and Retreat View Circle in Sanford, Fla.

Without that causal relationship, It’s hard to believe Judge Nelson would contradict her wise action from the bench. Daryl Parks, an attorney for the Martin family, said as much in an interview on Tuesday: “All the things they did to defame his character, to give him a bad name, to turn people against him, will not work because it doesn’t fit in the legal arena.”

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Kerry Sanders of NBC News reported Tuesday that some 500 people have been called as potential jurors. Sanders speculated that Martin’s possible use of marijuana may have some impact on which jurors would be empaneled and which ones would get bounced in the voir dire process. But in some ways, that would seem to be a non-issue.

As the recreational use of marijuana has widened in the mainstream culture over the last 40 or 50 years (if you don’t go back to the days of “Reefer Madness”), that increases the likelihood that anyone in a prospective jury pool is likely to have puffed the peace pipe at some point in their past.

But it’s precisely because the context of that use would be so speculative to begin with — Was it under a doctor’s care? Was it accidental? Was it a one-time indiscretion and not a habit? — that any defense attempt to ask about this has the effect of impugning the reputation of the prospective jurors, as well as Trayvon Martin himself.

To do that could be interpreted as an oblique, passive-aggressive way for the defense to introduce the very speculations that Judge Nelson on Tuesday barred from the trial’s opening next month.

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SINCE JUDGE Nelson has the judicial latitude to do so, she may well declare that neither defense nor prosecution can make prior drug use a question for the jury pool. That’d be consistent with the spirit of her ruling on Tuesday. It’s also consistent with Florida law, which lays out the scope of a judge’s authority: In January 1983 the Third District Court of Appeals ruled that “The materiality and propriety of voir dire questions are to be decided by the judge.” (Peri v. State, 426 So.2d 1025).

And there’s another option: under Florida law, the Court — Judge Nelson — could just conduct voir dire herself, requiring defense and prosecution to submit their questions for prospective jurors directly to her. Under either scenario, and for reasons of settled law in the Sunshine State, the idea of having defense attorneys quizzing possible jurors on whether they smoked pot or not would seem to be dead on arrival already.

Some think that, since some of the information damning Trayvon’s character has been in the public square for almost a week now, Tuesday’s motion denials played into the hands of the defense. Radio talk show host Michael Smerconish said Tuesday on MSNBC that: “While they’ll bring in 500 people as part of that [jury pool], and they’ll ask them if they’ve heard any of this news and if they’ve been prejudiced by it, no matter what those jurors say, in the back of my mind is always going to be the idea that somebody on that panel heard about the pot, heard about the gold caps on the teeth, heard about a history of fighting ... this was all intended to muddy the waters.”

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Jonathan Capehart of The Washington Post agreed with Smerconish. “They’re gonna be 500 people who’re gonna line up on June 10 to be part of this jury,” he said on MSNBC. “The idea that not one of those people will hear about the pot or will see the pictures of the gold teeth, hear about his school suspensions, read the redacted text messages that the defense put out last week is implausible.”

But how much weight will these 500 prospective jurors give this information? While it’s likely or even probable that the jury pool has seen Trayvon’s braggadocious escapades, the jury pool is just as subject to exposure to publicly-aired arguments against such defense tactics. They’re just as likely to dismiss some or much of what they’d seen on TV about Trayvon, sensing that information like that was planted by the defense for the express purpose of making Trayvon look bad.

It won’t have escaped the attention of any of those 500 people, if they saw Trayvon the Bad on TV, that there’s no direct connection between Martin’s past and what happened that night in February last year. The jury pool may dismiss it out of hand regardless of having seen it on TV. And depending on who comprises the jury pool and the actual jury — African Americans,  Latinos, women, younger people — defense attorney Mark O’Mara’s gambit may well backfire. There’s the risk that trying to paint Trayvon as some kind of Classic Thug® might be more a detriment to the defense than a weapon for the defense. Maybe a lot more.

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AND ANYWAY, if what Smerconish said about the defense “muddying the waters” is true, why go through all this dog & pony show about having such sinister character speculations as part of the trial opening? If you really believe this information-speculation on Trayvon has been widely available to the public, why even bother to use such characterizations in a pre-trial motion in the first place? The ill-fated motion was O’Mara’s way of hedging his bets, taking out some insurance just in case anyone in the jury pool may have seen Trayvon’s “misdeeds” on TV but forgotten about them when the trial starts.

Judge Nelson’s ruling drops that defense tactic at the knees, and rightly so. Among her other rulings Tuesday was one disallowing a defense motion to allow a jury visit to the scene of the crime. Circus circumvented.

All of this suggests her intent is to focus the trial in the courtroom, and to play it as it lays vis-à-vis the evidence at trial. Oh, the expert witnesses will earn their per diems: a pre-trial hearing on voice analysis of the 911 call and Trayvon’s cell-phone conversations right before his death will be held on June 6 and 7.

But the early betting is that Judge Nelson takes no tea for fever, and won’t countenance shenanigans from the defense or the prosecution when Florida v. Zimmerman formally begins about 13 days from now. That’s encouraging.

Image credits: Judge Nelson: Martin: The family of Trayvon Martin. Reefer Madness: via wikipedia. O'Mara: via Zimmerman: Stephen M. Dowell, pool/Getty Images

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