On June 3, a week before the trial was scheduled to start, the New York Times published a video “RetroReport” on the twenty-fifth anniversary of the Tawana Brawley hoax. The report made no mention of any parallels to the Trayvon Martin case, but they were there for anyone to see: the false claims, the marches, the demagogic Al Sharpton, the will-fully gullible national media, the besieged state officials. “The press had its agenda, no offense. The advisors had their agenda, no offense,” special prosecutor John Ryan told the Times. “Quite frankly, we had to deal where it was those of us in the armory against the rest of the world.” For his part, Sharpton remained largely unrepentant. Although he admitted his rhetoric may have gone too far, he took refuge in the righteousness of his calling. “At least give me credit for a life that was geared to social justice even if you think I was wrong on some cases.” Tellingly, the Times gave the final word to former Village Voice reporter Wayne Barrett, who openly questioned why the media paid any attention to Sharpton at all. “One would think,” said Barrett, “if he sold you such a terrible bill of goods on such a giant story that dominated news cycles for such a long period of time and proved to be a total hoax that you might not show up at his next press conference with your camera crew.”9

  On that same June 3, the Fifth District Court of Appeal in Daytona Beach served up another dose of troubling news for the prosecution. The court ruled unanimously that Zimmerman’s attorneys were entitled to depose Crump in regard to his interview of Witness 8 and the circumstances surrounding the interview. The appellate judges dismissed Nelson’s contention that Crump was an “opposing counsel” given that he was not acting as a lawyer for the state or the defendant. As to “work product privilege,” Crump abandoned any pretense of that when he interviewed his witness in the presence of “two media representatives,” one of whom promptly shared excerpts on national television. “The trial court erred in denying Zimmerman an opportunity to depose Crump,” said the Court of Appeal bluntly.10 The ruling had to sting. It also put Nelson on notice that she was not trying this case in a legal vacuum. Although skeptical of the process and wary about the outcome, Sundance had to admit, “This is a HUGE VICTORY for George Zimmerman.”11

  Zimmerman scored one more legal win just before the trial got rolling. In the so-called Frye hearing to determine whether certain scientific evidence was admissible, the State presented evidence from two audio experts, Dr. Thomas Owen and a Dr. Alan Reich. They had hoped to tell the jury how their scientific analysis proved the screams for help on the crucial 9-1-1 tape were Martin’s.

  Some months earlier the Orlando Sentinel had contracted with Owen, a court-qualified expert witness and something of an authority on biometric voice analysis. Owen used software called “Easy Voice Biometrics” to determine whether or not it was Zimmerman who cried out for help on that fateful night in February. “I took all of the screams and put those together, and cut out everything else,” Owen told the Sentinel. The software, however, registered only a 48 percent match, well below the 90 percent threshold needed to prove that the cries were Zimmerman’s. “As a result of that, you can say with reasonable scientific certainty that it’s not Zimmerman,” said Owen. Lacking a sample of Martin’s voice, he did not attempt to determine whether the voice was that of the dead teen, but if it were not Zimmerman screaming, who else could it have been?12

  The state attorney’s office contracted with Reich, a self-described “forensic acoustic consultant,” to process and analyze two recordings, one Zimmerman’s original call to the dispatcher and Witness 11’s 911 call. A month before the trial began, he turned in a final report with an embarrassing richness of typos and misspellings—“investigatiaon,” “signlas,” “lazer,” “wishpered,” “howver”—and these are just a few of the many. The report was also chockablock full with arcane pseudoscientific patois that no jury would ever have been able to understand, to wit, “Audio CD and 9-1-1 data-logging recording both have 16-bit amplitude resolution, which divides the vertical amplitude scae (sic) of the digital signal into 2^16 =65,526 amplitude gradations.”13

  Where others had heard a single individual yelling, “Help” or “Help me” for forty seconds, Reich heard a “loud, purposeful, mostly ‘turntaking’ linguistic dialogue.” This dialogue included a “seeminly [sic] religious proclamation” by Zimmerman, “These shall be.” According to Reich, this occurred simultaneously with Martin’s “loud, high-pitched, distressed, and tremulous ‘I’m begging you.’” Lest he be thought a total charlatan, Reich conceded that these statements are “challenging for the untrained listener to detect.”14

  At the hearing, which took place immediately before the trial, defense attorney O’Mara argued that trying to compare known speech samples with short bursts of screaming captured on the distant background of a 9-1-1 call while the caller and the dispatcher are speaking over the screams in the foreground was pointless. He presented testimony from four acknowledged experts in the field to make his case.

  On June 7, in the middle of this hearing, ABC claimed “exclusive” possession of a potentially significant recording, specifically, about six seconds of Martin’s voice as part of the cache found on his cell phone. The irrepressible Matt Gutman insisted that this recording would help solve “one of the biggest mysteries of this case so far,” in particular, who was doing the screaming on the 9-1-1 recording. In fact, the source of the screams was a mystery only to the willfully deaf, like Gutman. He added that the prosecutors were sure that that new evidence “proves that Martin was crying for help before he was killed,” but by this time, the State had to know that it was Zimmerman.15

  By insisting on expert testimony, the prosecutors were doing what defense attorneys do when they have a weak case, namely, muddying the waters and hoping to plant the seed of reasonable doubt. For a defense attorney this is standard practice. For a prosecutor, this was unethical, perhaps even criminal. All evidence pointed to Zimmerman as the man who screamed, “Help” or “Help me” at least fourteen times. Again, as Witness 6 told the police immediately after the shooting, he saw a “black man in a black hoodie on top of either a white guy . . . or an Hispanic guy in a red sweater on the ground yelling out help.”16

  For a number of reasons, including perhaps the fear of a reversal on appeal, Judge Nelson proved a tough sell. The defense had the better case, and she knew it. Of all the expert witnesses, Nelson acknowledged that defense witness Dr. Peter French impressed her most. He had testified that if law enforcement had given him the recordings at the outset of the case, he would have “rejected the assignment as it would have been fruitless to undertake the task.” Defense witness Dr. Hirotake Nakasone found it “disturbing” that anyone would even attempt such an analysis given the current state of the technology and the limited quality of the audio. On the twenty-second day of June, just two days after the jury was seated, Nelson ruled that “the opinion testimony of Mr. Owen and Dr. Reich are hereby excluded from trial.”17 In so doing, she spared the prosecution the embarrassment of presenting its trumped-up science in court as evidence but left observers wondering just what evidence the State could possibly present.

  Part 2

  THE TRIAL

  32

  FILTERING THE POOL

  THE CITY OF SANFORD CAME TO LIFE in Florida’s Pleistocene era—mid-nineteenth century—and even at the beginning ethnic strife dictated its reality. Early settlers clustered around an army base called Fort Mellon, a forward staging area in the Seminole Wars of the 1830s. When the Seminoles were dispatched to points westward or skyward, more settlers headed south, some with their slaves in tow. In 1870 an ambitious entrepreneur saw the potential in “Mellonville’s” location on the south shore of Lake Monroe, close to the geographical center of Florida, and purchased a good chunk of land west of town. By 1877 this entrepreneur, the less-than-modest Henry Shelton Sanford, had gotten a new city named after himself, and he and his fellow citizens promptly annexed Mellonville. The embryonic metro attracted the South Florida Railroad and was soon enough flourishing with its new train station, grand hotel, and an unrivaled distinction as Celery City in honor of the town’s most fruitful crop.

  In the years since, much of the prosperity that has blessed central Florida has bypassed Sanford. If Orlando has the glitz of Oz’s Emerald City, Sanford has the grit of Dorothy’s Kansas. The city claims to have plans afoot to “beautify” the road that leads into Sanford from Orlando, but at trial time it looked like the highway that time forgot, lined as it was by a weary mix of auto repair shops, vacant lots, bail bond operations, cheap motels, and fast food joints with no hope of ever being franchised. Thrown in the mix were the inevitable Chinese restaurant or two, an Islamic center, and, directly across from the newish Seminole County Justice Center, a vestigial amusement park. At first glance, the media trucks at the Justice Center looked like an extension of “Fun World.” Looks deceived. Although the media occasionally beclowned themselves in their reporting, nothing about the case they covered was amusing.

  To park, the visitor had to stop at four different informal checkpoints, all amiably staffed by sheriff’s deputies. Guarding the courthouse itself, in addition to a half dozen or so uniformed personnel outside, were three groups of three deputies, each group manning a screening device. At the entrance to the smallish, understated, fifth-floor courtroom where George Zimmerman was being tried for second-degree murder was still another screening device and another deputy. The security may have seemed excessive, but the Zimmerman family did not think so. If the New Black Panther Party had rescinded its fatwa on “child killer” George Zimmerman, no one told them or the media.

  On the first night of jury selection, June 10, Black Entertainment Television ran a well-produced but entirely unhelpful special, the message of which was implicit in its title: “Justice for Trayvon: Our Son Is Your Son.”1 Without intending to, the show revealed the dangers inherent in race-based television. It had an undeniable “us versus them” quality about it, the “them” being White America. The producers chose not to mention Zimmerman’s ethnicity, his civil rights activism, or the many and terrifying threats against his life. They did, however, see fit to highlight a few trivial slights to Martin’s memory and some unkind tweets to his celebrity supporters. To its humble credit, “Justice for Trayvon” closed with an appeal for peace should Zimmerman be acquitted, but it would have done much better to educate its audience as to the reasons why he might be.

  The protestors who showed up at the courthouse during the first week of jury selection did not much resemble the throngs that unnerved Sanford officials in March 2012. They were fewer in number and, on average, considerably whiter. Seminole County NAACP president Turner Clayton Jr. had his excuses ready. “The so-called ‘demonstration area’ that has been designated you will not see us protesting in that particular area cause no one tells us where to go, how long to stay, what to do, and what to say,” said Clayton.2 The paucity of the crowd at a church rally on the opening day of the trial, however, suggested another reason for the NAACP’s reluctance to jam at the courthouse. They were afraid not enough people would show. Of the protestors who did make it to the courthouse, many wore hoodies—something of a commitment on a June day in Florida—and some proudly carried the banners of the Revolutionary Communist Party, USA. “The Whole Damn System Is Guilty,” read one of the posters. “Revolution—Nothing Less,” said another. Zimmerman had always been a pawn in a larger game. These protestors just made it obvious.

  Jury selection, a tedious affair even in a celebrated trial, served as an ad hoc focus group on American media habits. Defense attorney Don West summed up the thrust of it with a totally unexpected knock-knock joke at the outset of the defense’s opening statement. “Knock-knock,” said West. “Who’s there?” he continued. “George Zimmerman. George Zimmerman who? All right, good, you’re on the jury.”3 What impressed observers on either side of the divide was just how many people—many of them well educated and employed—could have known so little about the most divisive criminal case in the nation and the most disruptive in the history of Seminole County. Several potential jurors, most of them female, admitted to having no real source of news other than what they picked up on Facebook or at the water cooler.

  The court pulled its jury pool from the county at large, which skews whiter—82 percent—and more affluent than the city of Sanford. The majority of county residents, as testament, did not vote for Barack Obama in either of his two presidential elections. The percent of the population recorded as “African-American” was roughly 10 percent. At the end of day seven of jury selection Judge Debra Nelson announced that the Court and the attorneys had screened the jury pool down to a final forty candidates.4 Kudos to the blog Legal Insurrection (LI) for the good work its editors did in tracking jury selection.

  The would-be jurors proved to be a diverse lot with a wide range of opinions. During his voir dire (preliminary examination to determine a juror’s competency), potential juror B35, a black male, unsettled those who think in stereotypes by referring to Sean Hannity and Bill O’Reilly as “Shaun” [sic] and “Bill.” He watched both of their shows on Fox News. Prospective juror B12, a female, recalled seeing a picture of Trayvon Martin as “a kid” and not much more. B29, also a female, may have inspired the knock-knock joke. “I don’t like watching the news, period,” she told West. “I don’t read any newspapers, don’t watch the news.” She had “no idea” about the case. B37, a female, was not at all unique in expressing her distrust of the media. She was just more colorful. As the admitted owner of three dogs, four cats, a parrot, a crow with one wing, and two lizards, she credibly argued that the best use of a newspaper was to line “the parrot’s cage.” Andrew Branca, the author of The Law of Self Defense and writing for Legal Insurrection, described B54, a middle-aged male, as “by far [the] most informed juror so far.”5 He didn’t have a prayer of making the final cut. Neither did B86, a woman who told the court, and I quote, “Trayvon Martin is expelled from school and if it hadn’t been out there wouldn’t have happened.”6

  Easily the most entertaining of the prospective jurors was E7, later outed as Jerry Counelis, an underemployed painter and musician in his fifties. When originally questioned, Counelis told the court that he chose not to discuss the case because he was wary of “making enemies,” having seen the people around him “get so heated” in their conversations.7 As to his own opinion, he believed that people were “perfectly within their rights to defend themselves,”8 but he had yet to come to any conclusions about the case. Well, not exactly. When Judge Nelson asked him if he had ever contributed to the Facebook site “Coffee Party Progressives,” he admitted he had.9 His postings, in fact, suggested that Counelis was something of a mole trying to burrow his way into the courtroom.

  “‘Justice’ IS coming,” promised Counelis on Facebook.10 He railed about “a corrupt City Police” that started “stonewalling” in the very minutes after the Martin shooting lest they be held liable for collaborating with an armed menace like Zimmerman. “But with the noise WE made,” he added, “it couldn’t be covered up.”11 Counelis injected the only bit of drama that first week when he returned to the courthouse the day after being dismissed, complaining that his anonymity had been breached and threatening to sue. Sheriff’s deputies, who finally got to see some action, escorted him away.

  It is a truism among attorneys that securing a favorable jury is less about selecting friendly jurors than de-selecting unfriendly ones. The defense scored a minor win when attorney Mark O’Mara questioned what genderneutral/race-neutral criteria prosecutors had used in striking four consecutive white women. Unimpressed by their answer, Judge Nelson placed two of them on the jury: B76, a middle-aged woman who knew that Zimmerman had been injured and didn’t trust the media; and E6, a mother and wife of gun owners, who had little knowledge of the case. At the end of the process, the six surviving candidates were all female. Although none were said to be black, the one Latina among the six, B29, the woman who had “no idea” about the case, appeared to be of African descent. “What I do think we have,” said O’Mara afterwards, “and I’m very happy with this, is six jurors who have told us that they’ll be fair and impartial.”12

  As time would tell, O’Mara had reason to be pleased. In the pro-Martin camp, however, the first faint rumbles were heard that the State may not have been playing to win. Among the rumblers was Al Sharpton. “I would hope that we get fairness,” he said on the day the jury was selected. “I think, though, we must deal with what the obvious is in terms of what the county demographics are, what is on the jury.” The juror that concerned him most was B-37, she with the three dogs, four cats, a parrot, a crow with one wing, two lizards, and a “concealed weapons permit.”13

  33

  F-BOMBING THE BOURGEOISIE

  IN A CRIMINAL TRIAL like State of Florida v. Georgia Zimmerman, the prosecution goes first with its direct examination, a major advantage. The State presents those witnesses that it thinks will solidify its case. The defense cross-examines them hoping to limit the damage. The prosecution redirects, and the defense recrosses. In this trial, Judge Debra Nelson presided.

  Representing the State as lead attorney was Bernie de la Rionda, “the bald dude” as his star witness would later call him. Backing up de la Rionda was John Guy, a toothsome young assistant state attorney straight out of central casting. Both had considerable experience trying murder cases, de la Rionda in particular. When the FBI presented de la Rionda with the Director’s Community Leadership Award in 2010, the presenter evoked de la Rionda’s “legendary” reputation as a prosecutor. That reputation would be sorely tested. Orchestrating the affair for the State was state attorney Angela Corey, who frequently took her place in the front row of the courtroom.1