Tuesday, July 16, 2013


I hope this will be my last post on the Zimmerman case, but I thought it might be helpful if I gave my analysis of: (1) The monumental problems of proof confronted by the prosecution, and (2) Why the trial ended the way it did.

The only full story of what had happened came from the lips of the defendant, and he quite naturally gave an exculpatory statement. There is a line of cases in Florida which holds that if the only version of a killing comes from the defendant’s mouth, that version must be accepted unless the defendant’s statement is either impeached or contradicted by other evidence. Wright v. State, 348 So.2d 26 (1st DCA Fla., 1977).  One way of impeaching a witness’s statement is to show that the witness has made conflicting statements. The prosecution decided to put on all the available statements made by the defendant to demonstrate the conflicts among the statements. This is a reasonable tactic, but it runs a grave risk. Each of the statements is exculpatory. There were peripheral disagreements among the stories, but they all agreed on the main point—Zimmerman said he acted in self-defense. The prosecution thus repeatedly put the defendant’s defense on for him when they put on his statements. This relieved him of the obligation to testify and allowed him to escape cross-examination. I have put on homicide cases this way myself with mixed results. Sometimes it worked, and sometimes it didn’t.
There is a second way to try such cases. Put on only one statement by the defendant, make the defendant take the stand to testify, and then repeatedly impeach him with the inconsistencies from the other statements. (Some will say that he has no obligation to testify in any event, and I agree that he has no legal obligation. But if his story is not adequately put before the jury by other means, he has a practical obligation to testify). Of course you run the risk of either having the judge dismiss the case because you didn’t put on enough evidence or having the defendant decide you have put on so weak a case that he doesn’t have to testify. I have put on homicide cases using this second method with mixed results.

I had a unique opportunity in one case to try both methods. The first time I tried the case, I put every one of the defendant’s numerous statements into evidence, and in final argument I charted the conflicts among the statements. The defendant didn’t have to testify because I had repeatedly told her story for her. The jury hung. I resolved that on the retrial I would do my best to make the defendant testify. I would do this by putting on only one of her statements, and that would be the statement in which she put herself in the worst light. She would feel compelled to testify, and I would impeach her with the many inconsistencies in her other statements. She testified and I beat her over the head with her inconsistencies. The jury convicted, but it was a close run thing. The second jury was out for an inordinate amount of time and nearly hung again.

The prosecutors had either course of action open to them and had to choose the method they thought most likely to achieve a conviction. Using the first method, they were going to get the case to the jury no matter what. Using the second method, they ran the risk of having the defendant call them, refuse to testify, and losing the case because of weakness of the case. If they had gotten the defendant on the stand the inconsistencies would have been much more effective when brought out on cross-examination, and the jury just might have come to dislike Zimmerman enough to convict him. Calling Zimmerman a liar in final argument based on a chart of inconsistencies from his statements would not have been nearly as effective as calling him a liar based on his stammering and stuttering as you lambasted him with contradictions on cross-examination.

Those are the advantages and disadvantages of the two methods of presenting the case. Which way was best? I would probably have opted for the second method, although I have had cases blow up in my face when I used it. The prosecution team opted for the first. I do not criticize them for having done so. Monday morning quarterbacks may say that the prosecution chose the wrong course of action, but I will not. They had a tough decision between two problematical courses of action, and they chose the one they thought best. I think at the end of the day, they would have been unable to carry their burden of proof using either method.