Under West’s guidance, Di Maio clarified a minor inconsistency that the State had been trying to pound into a “lie.” In his original statement to the Sanford police, Zimmerman said that after shooting Martin and pushing him off, he climbed on Martin’s back, “holding his hands away from his body.” Not knowing the seriousness of Martin’s wound, Zimmerman told a neighbor who had stepped out, “I need you to help me restrain this guy.” When the Sanford police arrived minutes later, they found Martin’s hands pulled under his body. Given the weakness of its case, the State hoped to present this as still another example of Zimmerman’s mendacity. As Di Maio vividly explained, however, Martin should have been able to control his movements for a minimum of ten to fifteen seconds even if his heart had been ripped out of his body. He shared a colorful anecdote about a man who had taken a point-blank shotgun blast that “completely shredded his heart” and yet was still able to turn and run sixty-five feet. These were details that seemed to capture the jury.

  Di Maio also addressed Zimmerman’s head wounds, the severity of which Rao had tried to minimize. Di Maio observed that intracranial bleeding is not always obvious and can sometimes cause death hours after the injury that caused it. He discussed, too, a consequence of a blow to the head known as diffuse axonal injury, a major cause of unconsciousness, coma, and persistent vegetative state. The police, he argued, should have taken Zimmerman to the hospital whether he wanted to go or not. This testimony had weight because Florida statute allows for deadly force if the person threatened “believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” According to Di Maio, Zimmerman had good reason to fear serious harm, even death, given his circumstances. His testimony badly undermined the State’s attempt to trivialize Zimmerman’s wounds. Just as crucially, it made the jurors question the reliability of the State’s DNA evidence.

  There wasn’t much the State could say to put Di Maio on the defensive. At one point de la Rionda mocked his assertion that a heartless man could talk for ten to fifteen seconds by miming a heartless man for fifteen seconds. In response, Di Maio explained to the prosecutor those fifteen seconds matter enough to SWAT teams that they shoot for the head not for the heart. On another occasion, in an obvious attempt to tweak the sympathy of the jury’s animal lovers, de la Rionda drew attention to Di Maio’s direct testimony that he used live animals in his study of gunshot patterns. As de la Rionda flinched in dismay, Di Maio assured him that he ran all experiments using a federally approved methodology in a federally approved facility. In this round, like so many others, the State did not fare much better than Di Maio’s animals.

  41

  FIXING THE FIGHT

  TO THE GREAT BENEFIT OF PEOPLE like Nancy Grace, the State of Florida permits just about everything that happens in court to be televised. This includes what is known as a “proffer.” In a proffer, one of the parties argues as to why certain evidence should not be ruled inflammatory, insufficiently authenticated, or hearsay, and why it should be presented to the jury in open court. To preserve the right to appeal on the basis of excluded evidence, the given party must make such a proffer. In a four-minute piece after an evening session on day eleven of the trial, ABC’s Matt Gutman devoted twelve seconds to the trial’s most contentious proffer, the one addressing the texts and pictures captured on Trayvon Martin’s phone.

  This particular proffer deserved much more time. “The defense said they showed Martin liked to fight,” said Gutman. Lest the viewer dwell on this note, Gutman’s producer promptly cut to prosecutor John Guy saying, “We don’t know who typed these messages.”1 As sketchy as its coverage was, ABC gave this subject—potentially the most critical in the trial—more attention than did most of their major media rivals.

  Like virtually all of his media peers, Gutman concentrated on the theme of “lawyers attacking lawyers.” He fully ignored the testimony of the man at the center of the proffer, Richard Connor. An attorney as well as a certified computer forensic expert, Connor explained to the court the content of what Martin had communicated on his cell phone and the efforts of Martin—or someone else—to protect those communications from scrutiny. That protection included a special application that allowed the user to delete messages in such a way as to avoid easy retrieval. Even using a sophisticated recovery tool, Connor had to work hard to retrieve that data. As he discovered, there was a good reason to bury it. What the data revealed was Martin’s unhealthy interest in guns, drugs, and fighting. Defense attorney Don West had Connor testify before Judge Nelson to show that this information was more than just “reputational.” Rather, it spoke directly to Martin’s physical abilities and his knowledge of fighting. “This is absolutely compelling evidence and it’s highly relevant,” argued West. The fact that the jury was not present for Connor’s testimony gave the media the excuse to ignore it, but their collective neglect did not make the story the data told any less true or real.2

  The blogosphere had been aware of Martin’s unwholesome interests for a year or more. Just before the trial, the defense posted much of the data from Martin’s cell phone on its legal website, and the major media felt obliged to discuss the issue, however briefly. With Connor’s testimony, the media had the opportunity, indeed the responsibility, to share these revelations with a more attentive public. Had they done so, they would have helped dispel the widespread illusion about Martin’s innocence and helped prepare the nation, black America in particular, for the eventual outcome of the trial. To share Connor’s testimony, however, would have meant un-spinning the web of disinformation that ABC and others had been busy weaving since the beginning. That wasn’t about to happen.

  With West’s guidance, Connor laid it all out for those who cared to listen. In the week before he died, Martin had had at least four online conversations about purchasing a .22 caliber revolver. Connor identified the several people with whom he had had these exchanges. Among them was someone nicknamed Fruit. As the Treehouse discovered in its exploration of the relevant social media, Fruit was Tracy Martin’s nickname.3 Whether he was the Fruit discussing a gun purchase with Trayvon remains uncertain. One would hope it was someone else named Fruit. In the cache recovered by Connor was a photo of a hand gripping a pistol. Whoever took the photo used Martin’s cell phone. It appears to have been a self-portrait.

  Although Martin’s enthusiasm for guns spoke to the unfortunate turn his life had taken, the defense team had more interest in the data related to MMA-style fighting. In a semi-comical turn, West had Connor read word for word from Martin’s November 2011 conversation with a girl named Lavondria. It bears repeating. After Martin told Lavondria he was “tired and sore” from a fight, she asked him why he continued fighting. “Bae” is shorthand for “babe.” Here is what Connor related:

  MARTIN:

  Cause man dat nigga snitched on me

  LAVONDRIA:

  Bae y you always fightinqq man, you got suspended?

  MARTIN:

  Naw we thumped afta skool in a duckd off spot

  LAVONDRIA:

  Ohh, Well Damee

  MARTIN:

  I lost da 1st round :( but won da 2nd nd 3rd. . . .

  LAVONDRIA:

  Ohhh So It Wass 3 Rounds? Damn well at least yu wonn lol but yuu needa stop fighting bae Forreal

  MARTIN:

  Nay im not done with fool….. he gone hav 2 see me again

  LAVONDRIA:

  Nooo… Stop, yuu waint gonn bee satisified till yuh suspended again, huh?

  MARTIN:

  Naw but he aint breed nuff 4 me, only his nose

  West had Connor establish, over several objections by the prosecution, that Martin had engaged in an MMA-style fight and clearly knew how to get a distinct advantage by establishing the dominant position. This became evident in a second conversation with someone named Michael “Suave” French. A day after his dialogue with Lavondria, Martin told French that his opponent “got mo hits cause in da 1st round he had me on da ground nd I couldn’t do ntn.” Two weeks after the shooting, this same Michael French told a local Miami TV Station that Martin “was smart and funny and he always kept to himself, too, so I know he wouldn’t start anything.” When asked why Martin was shot, French had his stock response ready, “It was a predominantly white neighborhood. So he looked suspicious. So that’s probably why.”4 The Treehouse found and posted a photo of French and Martin flashing gang signs.5

  Even more damning perhaps, Connor read from a Facebook post by Martin’s younger half brother, Demetrius Martin. Last seen in the media crying as he remembered his brother during a “March for Peace” rally, Demetrius asked Trayvon when he was “going to teach me to fight.” This all mattered, West insisted. Martin had a clear knowledge of fighting, some hard-earned experience, a knack for making noses bleed, and, as one of the photos showed, a buff enough physique to prevail when engaged. The prosecution, West argued, had a previous witness testify to Zimmerman’s interest in mixed martial arts. The defense had countered with Zimmerman’s trainer, who described his client as being a one on a one-to-ten scale of ability. The subject was in play. Fairness, West argued, dictated that the defense be able to make its best case. Not to admit this highly probative evidence, said West forcefully, would violate Zimmerman’s rights to due process under both the Florida and the United States constitutions.

  Prosecutor John Guy thought—or at least argued—otherwise. “We don’t know who typed these messages,” he claimed. He insisted, too, that the cryptic text language defied interpretation, that the word “fight” might be code for something else, and that the photo of a pumped-up Martin could have been taken after a workout. Throughout Guy’s argument, West looked like he wanted to strangle him. He and O’Mara had been in court for nearly fourteen hours, one more exhausting day on the forced march of a schedule dictated by Judge Nelson.

  In his rebuttal, West was unsparing. As he explained, the reason he had to present this critical proffer so late in the game was because the State had concealed the evidence. “We were misled, Judge,” said West. He was not exaggerating. Attorney Wesley White testified in a May 28, 2013, hearing that Ben Kruidbos, the IT director for Angela Corey’s Fourth Judicial Circuit, had alerted him that prosecutors were playing games with the evidence. Specifically, they failed to turn over to the defense the photos and pictures contained in Martin’s cell phone as required by evidence-sharing laws. Kruidbos confirmed this at a June 6 pretrial hearing. Corey fired Kruidbos a month later for violating “numerous State Attorney’s Office (SAO) policies and procedures” and engaging “in deliberate misconduct.”6 Kruidbos, in turn, has sued the State. As to White, he had already left her employ. The media scarcely raised an eyebrow about any of this.

  At the Treehouse, Sundance advanced a credible theory as to what data went missing and why. Connor, he argued, was “outlining a very specific educated thesis that the phone was scrubbed of damning evidence after death.” Deleted were the many references to Martin’s indulgence in fighting, guns, and drugs. “The STATE prosecutorial team intentionally deleted the data,” Sundance speculated, “then delivered a partial file with the non-deleted data, then at the last minute before trial delivered the full data set, but omitted the deleted data from the written report summarizing the entire ‘bin’ file.”7 To be sure, this was never made explicit in court, but clearly someone buried the data that spoke to Martin’s character. Given the recklessness of the life he was living, it seems unlikely that Martin would have gone to this trouble.

  Judge Nelson appeared to have already made up her mind. “I do have an authentication issue about it,” she said of the data contained in Martin’s phone. “Anybody could have picked up that phone and sent these text messages.” An exasperated West tried to explain that the phone had double passcode protection that even the FDLE could not crack. What is more, West continued, an earlier deposition with Jeantel confirmed that Martin had discussed fighting with her during this same period. It was hardly out of character. Nor would it have been difficult to confirm Martin’s authorship of the messages if the defense had had time to check with his phone mates, all of whose identifying information Connor easily deduced.

  “It’s simply unfair for Mr. Zimmerman not to be able to put on his defense because of the State’s tactics,” said West with barely controlled fury. “It is a strategy obviously because they had it in January and kept us from it.” West excoriated the prosecution for “playing games with us” and “lying to the court” before asking rhetorically, “and now it’s our fault?” Nelson was not listening—literally. “I’m not getting into this. Court is in recess.” So saying, she turned her back on West while he was talking and left the courthouse. For the media, the walkout was the story, and Nelson was its heroine. A word search for “Richard Connor” turns up precious little. A word search in the major media for “Lavondria” or “Michael Suave French” or “Demetrius Martin” turns up nothing at all.

  “It appears that Judge Nelson is on the verge of reversible error if she excludes the text messages on authentication grounds,” wrote LI’s William Jacobson immediately after the hearing. He cited a Florida case that a reader had forwarded, State v. Lumarque. This case considered the admissibility of photos and text messages found on the defendant’s cell phone. “This fact, testified by the State’s forensics expert, is sufficient to authenticate these exhibits,” ruled the appeals court. “As much as the State wants to keep out the text messages,” argued Jacobson, “reversible error due to an improper authentication ruling is not the way to go.”8 Sundance had a more generous take. “Nelson essentially ruled against admissibility based on ‘authentication,’” he argued. “She could have kept it out under other legal reasoning, but no, she chose the one without the slightest chance of being upheld by a District Court of Appeals.” He thought this ruling an “intentional” gift to Zimmerman, “his personal Platinum Express DCA Acquittal Card.”9

  If she read Legal Insurrection, Nelson did not pay it much mind. The next morning, without explanation, she ruled that Connor could not testify. The State still had a chance. Had Nelson allowed Connor’s testimony in open court, the prosecutors would have had to close with some story other than the delusional saga they were telling.

  42

  MAKING CRIME REAL

  ALTHOUGH SHE WAS ONLY ON THE STAND for eighteen minutes, the next-to-last witness for the defense may well have been the most effective. Her name was Olivia Bertalan. When her name was called, even the most dedicated trial observers were wondering who the demure, twentysomething blonde was. To that point, save for an appearance a year earlier on Nancy Grace, Bertalan had stayed in the shadows.1

  Bertalan served one primary purpose for the defense. She put a human face on crime. As O’Mara helped her explain, she had been at her Retreat at Twin Lakes home in August 2011 with her nine-month-old son when her life changed forever. “Two young African-American guys” started ringing her doorbell and then probed the house for a point of entry. With her husband Michael at work, she told the Court, “I called my mom because I didn’t know what to do.” Bertalan was upstairs with her son when she heard the two young thugs try to break in. “I started crying, and I called the police,” she said.

  The dispatcher told the frightened young woman to retreat to a secure place and “grab any weapon” she could find. The best Bertalan could do was to lock herself and her son in his bedroom while wielding a pair of rusty scissors—as effective an argument for gun ownership as ever heard on national TV. At least one of the men came upstairs. “He was shaking the doorknob trying to get in,” said Bertalan, still obviously rattled by the experience. Fortunately, the police arrived before he could break through. The two men grabbed what they could grab and hustled out the back. As Bertalan discovered, they took her laptop, her camera, and almost succeeded in disconnecting her television. “Is that the reason you moved?” O’Mara asked. “Yes, it was,” she answered.

  At that point, O’Mara rested. John Guy would have done well to let the witness stand down, but he chose to cross-examine her. “You had some contact with George Zimmerman after that event, did you not?” he asked. O’Mara objected. He had not so much as mentioned Zimmerman’s name. Guy’s question was outside the scope of his direct examination. Before Guy could continue, the jury had to clear the room. Guy continued his questioning of Bertalan in the form of a proffer. Once O’Mara saw how harmless his line of inquiry was, he withdrew his objection, and the jury returned.

  Thrown off his game a bit, Guy asked Bertalan whether Zimmerman visited her the day of the incident. He had. “You described for him the people that had victimized you,” Guy asked. She had. He then led her through a series of questions to establish the suspects’ sex, ages, and especially race. “African-American,” said Bertalan to the last question. Guy then asked her whether she talked to Zimmerman as many as twenty times about the incident. She had. Among the subjects she and Zimmerman discussed, Guy suggested, was that one of the suspects lived within the community, near the back gate, and was then arrested and released prior to February 2012. She agreed that he had been. Although he could not express it directly, Guy was trying to insinuate that Zimmerman was obsessed with crime and especially with black criminals. Implied too was that when Zimmerman saw Martin heading in the direction of the back gate, he might have suspected him to be one of the punks who broke into his neighbor’s home.

  O’Mara must have sensed the ham in Guy and suspected perhaps that he could not resist the urge to cross-examine. Whatever his motive, O’Mara saved much of his better material for his re-direct. “We were terrified when this happened,” said Bertalan, referring to the “home invasion,” a phrase O’Mara introduced and would repeat in one form or another four times. Yes, Zimmerman did come over. “I was just appreciative he was offering his hand,” said Bertalan. He even put a lock on her sliding glass door. There was nothing strange or weird about his attention, Bertalan confirmed. He was not “too involved.”