So far, the Monday-morning quarterbacking over the acquittal of George Zimmerman for the killing of Trayvon Martin has largely been about America’s terrible inability to see past race, even in the age of Obama — with side discussions about Florida’s gun laws and what should and shouldn’t constitute self-defense. But beyond those issues, was there anything the prosecution could have done better to hold Zimmerman accountable for what happened to an unarmed 17-year-old African-American boy on his way home on the night of February 26, 2012? Daily Intelligencer consulted with several experienced trial lawyers who followed the proceedings closely and came away thinking the state blew it in more ways than one. Below, a post-hoc critique.
1. The special prosecutor jammed the charges through.
After investigating for 44 days, local law enforcement decided not to prosecute, concluding that Zimmerman had legitimate grounds for a justifiable homicide defense. Even now, former prosecutor Christopher Darden says he never would have brought the Zimmerman case to court: “There was a high burden of proof giving way to reasonable doubt.”
Then came a special prosecutor, Angela Corey, who was appointed to review the case. In this way, the Zimmerman case came to resemble New York’s racially charged Howard Beach case, in which the locals didn’t prosecute until special prosecutor Charles Hynes stepped in. But the similarities end there. Unlike Corey, Hynes empaneled a grand jury before pressing charges. Corey skipped that step — “a tremendous flaw,” according to defense attorney Arthur Aidala. “Typically you could say, ‘Well, the grand jury thought it was enough,’” Aidala says. “Here it was not the case. The special prosecutor couldn’t say that.”
2. They should have asked for manslaughter from the start.
At the end of the trial, the judge allowed the jury to consider convicting Zimmerman not just of second-degree murder, but of the lesser charge of manslaughter. At the time, this came as a relief to some Martin advocates who were worried about an acquittal; they thought the jury might compromise on manslaughter to at least give Zimmerman some jail time. (They didn’t.) But what if the prosecution had started with a manslaughter charge? “That would have changed the whole tone,” Aidala says. “Instead of it being how Zimmerman had hate in his heart, it would have been more about a tragedy that nobody wanted to happen, but was caused by George Zimmerman’s reckless actions.”
But by starting with second-degree murder, the prosecutor was forced to prove Zimmerman was out to get Martin that night — that he had predetermined animus — a tall order for a case with no solid firsthand witnesses (Howard Beach, by contrast, had several). “And all they had to go was him calling them effing punks,” Aidala says. “The words were not so powerful, and even though the prosecution was doing a great job, those words didn’t exactly back him up.”
Defense lawyer Gerald Shargel says prosecutors would have been able to poke holes in Zimmerman’s self-defense claims more effectively if they had charged him with manslaughter. “The problem is that someone who is doing community watch is a recipe for disaster, particularly when somebody has a powerful semiautomatic weapon, because then the psychodynamics of the situation are far different. The people who volunteer are wannabe cops without training or credentials or discipline or mental focus as a police officer. It’s not a passive position,” Shargel says. “They played the 911 tape, so I’m sure the jury knew he was told not to follow Trayvon Martin. Trayvon is walking, Zimmerman is in a truck. With the ‘don’t pursue’ instruction, if he’d simply put the car in reverse, this never would have happened. He chose not to. I think that’s very telling. I think that would have had a huge impact on a jury. I think it could have been played stronger.”
3. Prosecution witnesses seemed poorly prepared.
Those supporting an acquittal have argued, right or wrong, that there simply was too much reasonable doubt, and too much evidence pointing toward self-defense. They single out the injuries to Zimmerman’s head, and the expert the defense brought in who said, in effect, that anybody who is getting his head slammed against the ground is going to feel fear of serious physical injury — which, in Florida, happens to be grounds for self-defense. “You can’t get around that,” Aidala says. Adds Shargel: “I don’t mean to be glib, but one problem the prosecution always has is the best witness is not there. So they’re hunting around for little corroboration — not even evidence as much as particles of evidence.”
That said, the prosecution’s witnesses and experts weren’t just weak by comparison, they seemed ill-prepared, too, particularly medical examiner Shiping Bao, who performed badly compared to the defense’s forensic pathologist, Vincent Di Maio. (“When Bao completely imploded, that was check,” Miami defense lawyer Richard Sharpstein told the Times. “When Di Maio testified, it was checkmate.”) Martin’s friend Rachel Jeantel also “could have been a very, very big witness for the prosecution,” says Aidala. “She could have made it sound like Trayvon felt he was being followed — even hunted — had she testified in a more credible way.”
4. The scream.
Going into the trial, it seemed as if the jury would be hearing Trayvon Martin’s screams on a recording from that night. The prosecution had an expert ready to testify about them. But the judge found the science used to make the identification — that Martin was screaming — too shaky to bring into trial. Then came the defense, with an expert FBI witness testifying that the scream was too brief to be analyzed properly to make an identification — but that the scream might be identified by people who knew him. Trayvon’s mother and brother said it was Trayvon. But then came the defense with at least five witnesses — old friends, people from every facet of Zimmerman’s life — all saying the scream was Zimmerman’s.”It really was a kick in the teeth to the prosecution when they couldn’t bring in their expert,” says Aidala.
5. The prosecutor allowed Martin to be put on trial.
Many people tracking the case agree that Zimmerman’s story had plenty of holes, the biggest one most likely being his claim that Martin, alone and unarmed, told Zimmerman, “You are going to die tonight.” “That to me seemed contrived and tailored to support a justification defense,” says Shargel. “That would be what lawyers call a false exculpatory statement. I think a more focused prosecutor would have played that up.”
Aidala sees a broader problem with the prosecution’s approach that made it easy for the jury to stop wondering whether Zimmerman was wrong to shoot Martin and start wondering whether Martin was the aggressor. “The prosecution admitted into evidence all of George Zimmerman’s statements from the station house and the videotape where he’s walking the investigator through what happened,” he says. But the prosecution didn’t have to let the jury see any of those statements. What if they hadn’t? “Imagine this: the prosecutor puts on the case, and in the case he puts on that there’s a gun that’s licensed to George Zimmerman, there’s a 911 call made by Zimmerman putting him at the scene, and a bullet that goes into Trayvon Martin that matches Zimmerman’s gun. Now the burden would go on the defense to prove it was self-defense.” The defense doesn’t have the power to enter all of Zimmerman’s pre-trial statements into evidence. Instead, Aidala says, “They would have to put him on the stand, and subject him to some serious cross-examination.” Zimmerman had already been caught in all sorts of lies by the judge during the bail hearing, to the point where he got thrown back in jail. Imagine what the prosecution could have done with George Zimmerman if he’d been baited to take the stand?
