Friday, July 05, 2013

It Has To Be Said: Judge Debra Nelson Is Not Handling The George Zimmerman Case In An Impartial Fashion

Judge Debra Nelson Not all judges are fair as any lawyer who speaks honestly about his or experience practicing in front of them will tell you. After all, they are human and subject to biases, prejudices and outside influences like any other person no matter how often they tell you they aren't. I've observed Judge Debra Nelson, the trial court judge presiding over the second degree murder trial of George Zimmerman, who prosecutors contend shot and killed Trayvon Martin without justification, a person he had never met before their chance encounter in Zimmerman's neighborhood while patrolling his neighborhood as a crime watch volunteer.

Prior to trial, Judge Nelson essentially decided that prosecutors would be allowed to admit negative evidence in Zimmerman's background, including his school records, to suggest to the six female jurors hearing the case that he was a wannabe cop who was frustrated that he had not been successful in his prior attempts to become a law enforcement officer and acted out his elusive dreams with deadly consequences. In essence, the prosecution's theory is that Zimmerman, who has a Hispanic mother and a black grandmother, holds a bias towards black people and profiled Martin on the night of the shooting because he was black. At the same time, Nelson told defense lawyers that they would not be permitted to offer any evidence about Martin's background that would allow the jurors to draw negative inferences about his predisposition to initiate physical fights with other persons, or otherwise act in a way that was consistent with Zimmerman's description of his actions on the night in question.

Martin had lived with his father at his girlfriend's home in Sanford, Florida in a condominium development where Zimmerman lived with his wife for only a short time after Martin's mother kicked him out of her house after a run-in he had with police when he was supposed to be at school. Earlier, he had been suspended from the Miami school he attended for fighting. He texted friends to tell them his mother had kicked him out of the house after "da police caught me outta skool." When a friend asked him if he was turning into a "hoodlum", he responded, "Naw, I'm a gangsta." Nelson would not allow any of that information to be offered by the defense, as well as images Martin had posted on Twitter showing him holding a gun, flipping the finger and showing off his marijuana plants. Despite a toxicology report suggesting that Martin had used pot a short time before his death, Judge Nelson would not permit that evidence to be heard by jurors.

There was bizarre testimony offered today by the prosecution from the medical examiner who performed the autopsy on Martin's body, who could not have been a worse expert witness for the prosecution, perhaps owing in part to his cultural distance as a Chinese immigrant from how things are done in American courtrooms. Dr. Shiping Bao had originally concluded in his autopsy report that the presence of THC in Martin's body would not have impacted his judgment on the fateful day as Zimmerman's defense attorneys had wanted to argue. Bao later changed his opinion to conclude the opposite but not until after his deposition in the case. Zimmerman's attorneys were never notified of the change in his position, as well as Bao's conclusion about the length of time he believed Martin would have lived after being shot by Zimmerman.

Justifiably, Zimmerman's attorneys believed a discovery violation had taken place because they had not been notified prior to trial of the changes in Dr. Bao's medical conclusions. Judge Nelson conducted what is known as a Richardson hearing to learn more about the circumstances surrounding his changed opinion to determine whether a discovery violation had occurred. The prosecution claimed they had no prior knowledge of his changed opinions, and Dr. Bao backed them up on that claim.

Nothing to see here according to Judge Nelson, who sided with the prosecution and ruled there was no discovery violation by the prosecution team. She was similarly dismissive earlier in the case when the defense complained about the prosecution's failure to timely turn over potentially exculpatory evidence to the defense. Equally as outrageous, Nelson barred any testimony from Bao indicating that he believed the presence of marijuana in Martin's body could have impaired his judgment. As a consequence, the jurors were barred from hearing any evidence that Martin was under the influence of an illegal narcotic, notwithstanding the professional conclusions of Dr. Bao. The only saving for the defense was the fact that his professional analysis proved so disjointed and confusing that jurors had to be left shaking their heads as to how this man was qualified to be performing medical examinations. Similarly, the prosecution presented another medical examiner with questionable credentials who claimed that Zimmerman exaggerated his injuries and should not have felt his life was in danger. Obviously, she's never been pinned down while someone struck repeated blows down on her face and head or she wouldn't have made such a preposterous claim.

Unbelievably, the defense caught Dr. Bao during his testimony improperly reading from written notes that he had prepared for his testimony at trial today that were not previously disclosed to the defense. Again, the prosecution claimed it had no idea that Bao, who had testified previously at no fewer than twenty trials as an expert, intended to refer to notes he had prepared for his testimony. Judge Nelson ordered Bao to turn over the notes to Zimmerman's defense lawyers and allowed a short break in the testimony for his attorneys to review the notes before resuming their cross-examination of Bao.

The state wrapped up its case after Bao's bungled testimony that was wanting in credibility to say the least. Zimmerman's attorney, Mark O'Mara, made a convincing argument for at least a dismissal of the second degree murder charge against his client, if not an outright acquittal based on the strong evidence that came out during the prosecution's case supporting its theory that Zimmerman acted in self defense.

The defense's self defense contention was heavily bolstered by the visible injuries requiring medical attention that Zimmerman sustained after he contends Martin surprised him by jumping out from a darkened area on a dark, rainy night and knocking him to the ground with a sucker punch. The evidence showed that the back of Zimmerman's clothing was wetter than the front and had grass stains on them, supporting his contention that Martin was on top of him, punching him in the face and slamming his head into the edge of the sidewalk. The pants worn by Martin also showed grass stains on the front legs, supporting Zimmerman's contention that he was on top of him straddling his body. The neighbor who lived closest to the deadly encounter testified that he saw Martin straddling Zimmerman and moving his arms in a downward motion towards Zimmerman, while Zimmerman screamed out for help. Martin's body sustained no similar injuries indicating that he had been struck by Zimmerman, other than the single gunshot wound. The medical examiner testified that Martin's knuckles showed signs of injury consistent with Zimmerman's contention that he had been struck repeatedly by Martin.

Sabrina Fulton, the mother who had booted Martin out of her home only days before he was shot by Zimmerman, predictably testified in court today that the voice of a person screaming for help that could be heard on a 911 call was that of her son. Her other son also testified to that effect, although he admitted that he had first concluded that it was doubtful the voice was that of his brother before later changing his mind. Prosecutors, not surprisingly, never called Martin's father because he had stated that the voice on the 911 call was not that of his son when he first heard it. Jurors were not allowed to hear testimony about a civil suit Fulton and Martin's father, Tracy Martin, had brought against the homeowner's association to recover for their son's death. According to news reports, the parents settled out of court for $1 million this past April.

For its first two witnesses, the defense called Zimmerman's mother and an uncle, who just happens to be a deputy sheriff in a neighboring county. Both testified convincingly of their belief that the voice heard screaming for help on the 911 tape was that of Zimmerman. I'm not an expert  on voice analysis, but anyone with common sense could figure out that the voice belongs to Zimmerman and not Martin after hearing him speak as the jurors did at length during his multiple recorded conversations with police without the assistance of an attorney shortly after the shooting. I don't hear the voice of a young boy as some insist the voice sounds, and at any rate, Martin wasn't a young boy. It was patently obvious to me that Martin's mother, who actually trademarked her son's name to further profiteer from his death, didn't believe her own testimony when she claimed the voice she heard was that of her son. She only reached that conclusion after meeting with Sanford's mayor and a roomful of attorneys to listen to the tape, who no doubt explained to her how critical it was for the prosecution's case for her to say that it was her son. The fact the mayor became involved in influencing her testimony in the case shows how politically-charged this prosecution became.

An ethical prosecutor would have pulled the second degree murder charges off the table by this point or would have never charged it in the first place, but this prosecution team is clearly responding to political pressure surrounding a racially-charged case rather than operating in accordance with the rules of professional conduct governing the actions of prosecutors. Judge Nelson, who doesn't even attempt to hide her disdain for Zimmerman's attorneys, wasted no time in ruling against the defense's alternative motions for an acquittal or, at a minimum, a dismissal of the second degree murder charge, leaving a lesser-included offense of manslaughter for the jury to decide. It is inconceivable that any reasonable person could conclude that Zimmerman possessed the ill will or hatred towards Martin to satisfy the proof required by the prosecution to prove second degree murder under Florida law, but Judge Nelson will leave it to chance that jurors might conclude otherwise.

I should also point out that Zimmerman's parents were barred from the courtroom from day one by Judge Nelson because they might be called as witnesses. Even though the prosecution listed Martin's parents as potential witnesses, Judge Nelson made no such ruling barring their presence during the trial. Just another example of the bias this judge has shown towards the defense. She is the second judge in the case. The first judge, Kenneth Lester, was removed by the Florida Court of Appeals after the defense justifiably complained about the bias he showed towards Zimmerman by making gratuitously negative comments about him in complaining that Zimmerman had not fully disclosed donations he had received for his legal defense while seeking the assistance of a public defender. Lester revoked Zimmerman's bond before he was removed from the case by the Court of Appeals after denying the defense's motion that he recuse himself. Hopefully, the jurors have better sense to decide this case correctly than the judge and prosecution have demonstrated thus far by their actions.


Josh said...

Well said. I cant believe the blatant bias shown by the "honorable" Judge Nelson throughout this entire trial.. I pray the jury sees through all of the BS

Marycatherine Barton said...

Yes, thank you very much, Gary for your explained criticisms of Zimmerman's judge. Shocking denial of justice going on in her court!!

HerbertWalker said...

Where is the outrage towards overzealous prosecution? Where is Cato to complain about the government and the over-reaching legal system?

for once it would be well-placed.

this case never should have been charged. the local prosecutor and police department saw it for what it is. self defense is a "perfect" defense, absolving zimmerman of any culpability. he's not guilty.

in the end, a tie should go to the base-runner. at least in Indiana. the jury could believe both sets of families in the identification of the voices on the 911 call. but in doing so they must find for zimmerman.

the stains on the decedent's pants, the injuries to zimmerman's head (front and back) all firmly support zimmerman's account. if zimmerman had the "malice" against martin the prosecution wishes to attribute to him, why didn't zimmerman unload the magazine on him? dump the whole lot into martin to get back at him for whatever transgression the prosecution believe zimmerman was avenging?

Omara is doing a brilliant job, and his presence in court is highly effective-deliberate, soft delivery, well thought out arguments on the directed verdict effort, and a firm appeal to reason.

contrast that with the prosecutor's response to the motion against judgment on the evidence-a disjointed appeal based on emotion, sentiment, and not the law.

not unlike the whole case put together by the prosecution.

MckinneyMini said...

Umm his parents were barred from the courtroom because if you noticed they TESTIFIED!! Anyone who testifies is sequestered for good reason. She said they will be allowed back in after they testified and that is how it works. Also you can eat your words because she is going to allow the defense to enter in that Trayvon had traces of marijuana in his system. If she was biases she wouldn't allow that now would she?

Gary R. Welsh said...

Ummm, the post makes that point clear. Trayvon's parents were witnesses as well and weren't barred from the courtroom. Also, a separation of witness order makes little sense in a televised trial since the witnesses have access to the proceedings as if they were sitting in the courtroom. At the time this post was written, Judge Nelson had barred the toxicology report. She later changed her mind.

Anonymous said...

I appreciate the sage and thoughtful comments of the author. The bias against the defence team is just breath taking. The judge seems consistently rude and dismissive of the defence team and overly accommodating of some quite unprofessional behaviour of the prosecution. I am surprised there is not much more being written about how badly biased the judge appears to be. If Zimmerman is not acquitted I think the appeal process should be a cakewalk based on her bias and poor rulings

Anonymous said...

I have wondered if Zimmerman could base an appeal on Judge Nelson's biased rulings during this trial. I am not a lawyer, but her demeanor and rudeness toward the defense team leave me stunned. How can a judge be permitted to exhibit such rude, dismissive behavior in court?

Anonymous said...

I am in total agreement and astonished at the lack of impartiality of "Judge" Nelson!! I would be surprised if the Defense team - whom she has such distain for, doesn't move for a mistrial or an appeal based upon this Judge's lack of professional conduct as well. In Florida, I would imagine the Court of Appeals would be encouraged to perform a judicial review of this biased Judge!

Anonymous said...

Our judicial system is rife with liberal leaning judges, who in their predispositions seem unable to fairly administer the longer should judges be appointed for lifetime positions and no longer should there be career politicians...the only way out of this mess is term limits...the only flaw our framers of the Constitution made by omisiion...

Anonymous said...

looks like the people of Florida get the government they deserve.. they voted these liberal in ,, hope they enjoy the mess they made...

Anonymous said...