Oscar Pistorius Trial: Bad Week for the Prosecution

Whilst there is still a long way to go, it’s been a pretty bad opening week for the prosecution at the Oscar Pistorius trial for the murder of Reeva Steenkamp and various firearm related offences. A lot of it has been self-inflicted, Prosecutor Gerrie Nel has devoted most of the week to trying to argue the screams that various neighbours heard in the early hours of the morning were that of Reeva Steenkamp and not Oscar Pistorius, and that all the loud bangs witnesses heard were gunshots. If proved it would advance (although not prove) his case that Oscar Pistorius knew Reeva Steenkamp was in the toilet when he was shooting her.   

However, the problem he has is that not one of the ear-witnesses called to give testimony so far — Michelle Burger, Estelle van der Merwe, Charl Johnson and Dr Johan Stipp — could  positively identify the voice heard as Reeva Steenkamp. Although we now know that Estelle van der Merwe’s husband is expected to positively identify the voice he heard screaming as that of Oscar Pistorius. So Prosecutor Gerrie Nel has been at pains to try to prove that the voice the witnesses heard was that of a female and by implication that of Reeva Steenkamp’s.  Although the four ear witnesses all believe the high pitched screams they heard from some considerable distance away were that of a female, they have no objective basis to support their firmly held beliefs. Similarly none of the witnesses are able to objectively substantiate their beliefs that the loud bangs they heard were gunshots and not a cricket bat striking a door. A loud bang might sound like a gunshot but that doesn’t necessarily mean it is. The prosecution witnesses are only able to speculate as to what they heard. 

The fact that the prosecution has no objective evidence to substantiate the theory that it was Reeva Steenkamp screaming is a huge problem in a trial by judge because the judge where they won’t be able to get away with mere speculation like they could in a jury trial. What we now know for certain since neither side contests it is that Reeva Steenkamp couldn’t have physically screamed after she was shot in the head, so if the screams came after the shots then they were self-evidently not her’s. Yet all the witnesses heard screams after a succession of bangs which they took to be gunshots. The only witness to hear a succession of 2-3 bangs after the screams was Dr Johan Stipp but he also heard a succession of 3 bangs before the screams, but Nel has been forced to concede that there weren’t two volleys of shots and hasn’t been able to satisfactorily explain away the initial three bangs Dr Johan Stipp heard.

Frankly, this all seems a bit unnecessary because the prosecutions case won’t hang and fall on whether it was Reeva Steenkamp or Oscar Pistorius screaming. Pistorius might well have been shocked and distraught after shooting Reeva Steenkamp, that doesn’t been he didn’t intentionally shoot her. Gerrie Nel, seems to have been sidetracked by this point and would have clearly been better off not calling husband and wife Charl Johnson and Michelle Burger to testify who were 177 metres away. They proved to be terrible witnesses because they were caught in lie after lie, they obviously collaborated and fabricated parts of their evidence, and were so irascible and unreasonable in their answers under cross-examination, I doubt that Judge Thokozile Masipa will give much, if any weight, to what their testimony. However, the prosecution has yet to present any forensic evidence and Nel has nearly a 100 more witnesses to call. So it’s far from over. 

George Zimmerman and Domestic Violence

Since George Zimmerman was exonerated of all wrong doing in the lawful killing of Trayvon Martin, he has been accused of domestic violence by both his estranged wife Shellie Zimmerman and girlfriend Samantha Scheibe. Whist Shellie retracted her allegation that Zimmerman threatened her and her father with a firearm when confronted with video evidence that proved otherwise and wisely declined to press charges, there was also another prior, albeit unsubstantiated, allegation of domestic violence made against Zimmerman in August 2005 by Veronica Zuazo. No criminal charges were brought but both Zuazo and Zimmerman were both granted civil restraining orders against each other with no finding of fault.

There are a lot of people who want to believe Zimmerman was guilty of domestic violence — the same people who erroneously believed he was at fault for killing Martin in self-defense — but until Scheibe’s allegation there have been no criminal charges filled. Scheibe did file criminal charges so her allegations are not so easy to dismiss. Initially I was inclined to believe that they were true and that Zimmerman had threatened her with a shotgun. However, after I heard both emergency calls I had my doubts. Obviously there was a domestic but Scheibe sounded too aggressive and confrontational for someone who had just been threatened with a firearm. Whereas Zimmerman sounded meek, frightened and confused. Moreover, she had no injuries, so there was no evidence of battery. Then it was revealed that she was doing a kiss and tell. She had been trying to flog the lurid details of her life with Zimmerman to the national media. Shortly after failing to find a buyer, she makes this report of domestic violence, which doesn’t disprove her account but does seriously damaged her credibility. Then of course she retracted her evidence and claimed that Zimmerman didn’t point a shotgun at her.

Domestic violence complainants retracting their evidence is not uncommon. However, that in itself was no obstacle to a prosecution. Zimmerman had been charged with aggravated assault with a weapon/ domestic violence (784.021 1a), battery/ domestic violence (784.03 1a1) and criminal mischief (806.13 1b1). Scheibe’s retraction only applied to the aggravated assault with a weapon/ domestic violence (784.021 1a). The prosecutor could have called put as a witness in repect of all three charges and impeached her testimony with her prior video statement. According to Zimmerman’s arrest report on the 18 November 2013, Scheibe told officers that she “advised Zimmerman that she was calling the Police because she was nervous about why he pulled out the Shotgun. Zimmerman then pointed the Shotgun at Scheibe for a minute, and asked her if she really wanted to do that.” The report also says that “she was not sure whether the shotgun was loaded or not when it was pointed at her, and she was concerned for her safety.”

Assuming that was true, the prosecution would still have enough evidence to proceed, so I was surprised that Zimmerman’s defense counsel, Jayne Weintraub, was able to convince State Attorney Phil Archer and Assistant State Attorney Christopher White to drop the charges. All three lawyers agreed that the prosecution had no realistic prospect of conviction. It seemed strange but now having watched the video of Scheibe being interviewed by Deputy LaGuardia of the Seminole County Sheriff’s Office, it’s very apparent why the State Attorney Phil Archer and Assistant State Attorney Christopher White dropped the charges. What was said in that interview didn’t support the charges and a lot of it would have been inadmissible.

Scheibe didn’t say the gun was pointed at her for a minute, as stated on the arrest report, she said a second, which is a huge difference. She also said she thought that Zimmerman had unloaded the shotgun in the bedroom. Also LaGuardia asks Scheibe whether the manner in which Zimmerman said “do you really want to do that?” was threatening, she agreed it was but she didn’t volunteer that information. Moreover, Scheibe never says that Zimmerman verbally threatened her with violence let alone put her in fear of her life. She never says she ever thought she was going to be shot. Furthermore, when she was asked to make a physical demonstration of how the gun was pointed at her, she holds the imaginary shotgun across her body at waist level in a relaxed position with the imaginary muzzle pointing to the side. She certainly doesn’t demonstrates Zimmerman pointing the gun at her face as she suggested in her emergency call.

Scheibe also never actually suggests that Zimmerman intentionally aimed the weapon at her in her. Unintentionally pointing an unloaded shotgun in her general direction for a single second is poor muzzle discipline, but it doesn’t constitute aggravated assault. In her demonstration the muzzle would have been nearer to her vagina than her face.

LaGuardia, disgracefully, tries to get her to change her account by asking whether the firearm was held at shoulder level and then demonstrates holding an imaginary shotgun at shoulder level aiming directly at her, which is a complete distortion of what she demonstrated. She refuses to change her evidence and reiterates that Zimmerman held the firearm across his body at waist level. At which point LaGuardia should have noted the contradiction between what she has said in the emergency call and what she is saying in her video statement.

Instead, LaGuardia asks Scheibe whether she thought Zimmerman intended to harm her. She rather telling states that she doesn’t know. In fact, she concedes she wasn’t sure whether the gun was loaded but initially thought it wasn’t. She says she doesn’t know whether Zimmerman intended to use it on himself, hit her with it, or threaten her with it. The arrest report should have noted that Scheibe didn’t know whether Zimmerman intended to harm or threaten her. That would have been an accurate description of what she said.

However, the most egregious part of the interview was when Scheibe told LaGuardia that Zimmerman had choked her previously. Not only does LaGuardia suggests to her that Zimmerman might have choked her with his hands, he asked her did she have trouble breathing. She responds by saying she was making fun of Zimmerman by asking him “are you really going to do this right now?” — note the similarity between that and what she said Zimmerman said to her when he was pointing the shotgun at her — then predictably she says she couldn’t breathe, which she hadn’t previously volunteered. She then admits that she hit him after he choked her and thought that would be used against her. LaGuardia asks her, “Did you hit him out of self-defense or… anger … was it a response to choking you?”

There was no proof of physical injury to Scheibe, no independent witnesses, and Zimmerman had already suggested that Scheibe had gone crazy and thrown his things around, which she partly admitted, when Scheibe acknowledged hitting Zimmerman in a prior domestic altercation LaGuardia should have immediately stopped the interview and allowed her to speak to a lawyer. Instead, he deliberately interrupted her to prevent her from incriminating herself further and suggested to her by way of question that she was acting in self-defense. She only suggested she was acting in self-defense after LaGuardia put it to her, had he not not done so she might have said that she hit him in retaliation or that was the normal course of their relationship, and Zimmerman was likely to deny choking her.

On the basis of what Scheibe says in the interview, she isn’t accusing Zimmerman of intentionally aiming a shotgun at her. What she’s actually accusing him of amounts to pointing an unloaded shotgun in her general direction for a single second and using it to break her table, then breaking her sun glasses and locking her outside. Although, in fairness she was being aggressive and confrontational and admits to moving (more likely throwing) his things about. She also accuses him of grabbing her throat and partially choking her on an earlier occasion during an argument, in which she acknowledges hitting him.

Black on White Violence

Knockout is the latest craze to come out of Black American subculture. Blacks attack unsuspecting passer-by (predominately whites) with the aim of KO them with one punch.

No doubt the usual angry black faces will find every one else to blame except of course the perpetrators (black Americans), but its worth remembering that slavery was abolished in the USA in 1865, so no black American has been affected by it. In fact, most black Americans are not even descended from North American slaves. More are the descendants of sub-Saharan slave traders and cannibals. More importantly, blacks have had equal legal voting rights with whites in the US since 1870, which is a lot earlier than the most white men and women in Europe.

Obviously racial prejudice still exist but its a two-way street, and certainly today more whites are attacked, raped, murdered, robbed or burgled by blacks than vice versa. The problem is that for far too long blacks American self-identity has been wrapped up in the culture of victimhood, and this is used as a justification for violence against white Americans.

European Lawyer’s Perspective on Zimmerman Trial

As an avvocato (Italian lawyer) and European lawyer, self-defence cases are one of my principal areas of specialisation in both criminal and civil law. I’ve successfully defended clients charged with homicide, attempted homicide, wounding, aggravated assault, and brawling (or affray) in numerous European nation States. So I found following the George Zimmerman trial insightful because although I’ve represented clients in 16 European states to date, I’ve never been involved in a case in the USA and so it gave me an opportunity to see a self-defence trial across the pond. Now that I’ve either seen or listened to all the testimony in the Zimmerman trial, I’m going to give my no-holds barred assessment of the case over several posts. If you’re of a nervous disposition, look away now!

Lets start with Barack Obama’s posthumous adoption of Trayvon Martin on the 23 March 2012: “You know, if I had a son, he’d look like Trayvon. And, you know, I think they [Trayvon Martin parents] are right to expect that all of us as Americans are going to take this with the seriousness it deserves and that we’re going to get to the bottom of exactly what happened.”

Clearly Obama was trying to appease his black supporters but he’s not a black political agitator speaking in Chicago, he was speaking as the President and Chief Executive of the United States. His comments were disgraceful, not only were they racially charged — he certainly wouldn’t have said it if Martin wasn’t black — they were also very clearly prejudicial to George Zimmerman’s defence that it was Martin who attacked him, a view that was supported by State Attorney Norm Wolfinger and Sanford Police Chief Bill Lee who had both decided the shooting on the 26 February 2012 was a justifiable homicide. Obama was also well aware that there was an ongoing homicide investigation because Angela Corey had been appointed as a Special Prosecutor to investigate the case by Florida Governor Rick Scott the day before, and Obama said specifically said before making his comments, “I’ve got to be careful about my statements to make sure that we’re not impairing any investigation that’s taking place right now.”

So he knew exactly what he was doing and frankly could not have thought that his comments would not compromise the investigation or any potential jury trial. Given that Zimmerman was facing a jury trial I’m very surprised that O’Mara didn’t argue that Zimmerman could not get a fair trial on the basis that Obama’s comments would prejudice a jury against him and undermine his claim of self-defence. The judge could hardly direct a jury to disregard the President’s comments.

US Criminal Justice System: best in the World!

Speaking after George Zimmerman’s acquittal, Bernie De la Rionda said “we have a great criminal justice system, it’s not perfect, but it’s the best in the world,” which was echoed by Mark O’Mara, Zimmerman’s lead counsel, who said, “He’s been acquitted by the most fair system in the universe”.

A lot of Americans probably believe that but it’s simply not true. By any objective standard, the US criminal justice system is one of the worst in the world. Don’t believe me? Look at the facts.

The US leads the world in prison population per capita, with 716 incarcerated per 100,000 of the population, accounting for 24% of the world’s prisoners. In fairness to Florida it only has 557 per 100,000 of the population, but that’s still significantly more than Russia or Iran. By way of contrast, England and Wales has 148 and Italy 108 prisoners per 100,000 population. No EU nation has anything like the same number of prisoners per capita as the USA or Florida. So unless you believe that the population of the US is more lawless than any other nation in the world, too many people are being locked up. Part of the reason is that 90% of convictions are the result of plea bargains.

The USA also leads the world in duration of prisoners’ sentences. For example, if George Zimmerman had have been convicted of second degree murder he would have been sentenced to 25 to life, and if he was convicted of the less included charge of manslaughter he was looking at 9.25 – 30 years, and a reasonable expectation that he would serve be serving over 25 years no matter what. Whereas if he was convicted of the comparable offence of involuntary manslaughter in England (there is no second degree murder), under current guidelines in cases of extreme provocation, the recommended sentence is 0-4 years. He could expect to receive a 3 year sentence, reduced to 2 years with remission, and eligible for early release after 18 months. In Italy, if convicted of the comparable offence omicidio preterintenzionale, despite technically having a tariff of 10 to 18 years, that is before relevant reductions for mitigating and extenuating circumstances. He could expect a sentence of just under 3 years but actually serve no time at all because prisoners with 3 years or less (4 years in the case of vulnerable prisoners) are automatically eligible to apply for non-custodial sentences, which will ordinarily be granted and certainly would in this case.

Furthermore, the US military, US Federal Government, and 32 US States, including Florida, still practice the death penalty. In fact, Florida is currently in joint second place with Oklahoma in the number of death sentences carried out this year and has more prisoners on death row than any other state. So what has capital punishment got to do with fairness?

Well nothing if all the people executed were guilty and received a fair trial but they don’t. The USA has carried out numerous wrongful executions. The only country in Europe that still practices the death penalty is Belarus, a pariah state, which is not allowed to be a member of the council of Europe, and is effectively made to sit on the naughty step by the rest of Europe. In fact, of the 40 nations out of 193 UN members states that still practice the death sentence, there are only two from the Americas: the USA and the Federation of Saint Christopher and Nevis, the rest are from Africa and Asia. And even amongst that bunch of the USA still comes fifth in the in the world in the number of death sentences carried out annually, behind such bastions of democracy as China, Iran, Saudi Arabia and Iraq.

I would also question the fairness of the jury system as a lawyer who represent clients in jurisdiction that use the jury system and those that don’t, I certainly wouldn’t opt for trial by jury. In the Zimmerman case six unqualified jurors were left to their own devices to adjudicate a murder trial, to their credit they returned with the right verdict, but lets not forget it took them 16 hours and 20 mins to get there and at one point three of them wanted to convict of manslaughter. Also as Alan Dershowitz has pointed out the US is the only nation that elects prosecutors and judges, which is hardly conducive to the defendant’s right to receive a fair trial.

Zimmerman Trial: Selene Bahadoor

Selene Bahadoor is one of the prosecution’s main eye-witnesses, it is essential to their case that she was credible and support their argument that Martin and Zimmerman were engaged in a standing struggle. She testified to that but as O’Mara started his cross-examination it was obvious she was untruthful witness. Instead of admitting she had never told anybody she heard movement from left to right before the day of the trial,which she could have easily done. She repeatedly lied. She claimed she had done so even though it wasn’t recorded in any of her statements. Then there was the revelation that she went over her evidence at the same time as her sister with the State’s investigator, which is hugely significant. The State should never have allowed that.

But where she really fell apart was when asked about her sympathy for the Martin family she denied any bias but was forced to concede that she had clicked like on a Trayvon Martin family facebook  page. On redirect Bernie de la Rionda knew she was lying, the sensible thing to do was to get  get off the her off the stand before she could do any more damage to his case  but he chose to try and salvage her testimony, which makes him look as devious as she is. When Bernie de la Rionda suggested she hadn’t originally come forward because she didn’t want to be a witness or in the national media. O’Mara then quickly pointed out on re-direct that she had already done a media interview, then dropped the bombshell that she had signed a petition for justice for Trayvon Martin. She at first denied it, Then when shown it she reluctantly acknowledge it.

Consequently her credibility is in tatters, she’s clearly lied during her testimony, she biased as hell and she lied about that too. In fact, there’s good reason to believe she made her whole account up, but perhaps even worse she’s black. It won’t have escaped the five white and one Hispanic jurors attention that a black witness lied to support the prosecution because she identified with Martin. Nor will it have escaped their attention that the prosecution want them to ignore that.

 

Zimmerman Trial: Going from Bad to Worse for Prosecution

At this point in the case, it’s pretty clear that Bernie de la Rionda is a terrible case manager. Ultimately it’s his decision who the State calls to the stand, and right now the state hasn’t called one witness to the stand who helps their case. In fact, their own witness, Wendy Dorival, the Sanford Police manager, devastated their case on the stand. Had did it escape their attention that she kinda likes George Zimmerman. You don’t need to be a legal genius to realise that it the prosecution really ought to avoid calling witnesses that are favourable to the defendant, but they did even though she couldn’t substantially add to their case. All she could say for them was what was on her literature that they could have introduced into evidence without calling her. And all that said is don’t be the “vigilante police” be the “Police’s Eye’s and Ears”. Don West didn’t have to tease anything out her, she happily testified at length that George Zimmerman was a good guy, polite and respectful, meek, very professional and that she even asked him to be a volunteer on another police programme but he declined. Not once did she notice anything wrong with him. In fact, she smiled throughout her testimony. She also testified as to what constituted suspicion and what should be reported — guess what it matches what Zimmerman did not only on the night or the shooting but every other time he called. John Guy, must have tried hard to resist the urge to bang his head repeated against the desk.

On another note, Ramona Rumph testimony on the non-emergency calls Zimmerman will now be admissible, but they only paint Zimmerman in a good light, and given Wendy Dorival testimony, I suspect O’Mara wants them introduced they will do more good than harm. Zimmerman comes across as a meek concerned citizen.

However, the worst prosecutor is easily Richard Mantei, he’s both irritating and incompetent. If he doesn’t stop puling faces and acting like a petulant child, the jury will stop listening to him, although that might not be a bad thing for the prosecution. His questioning of Donald O’Brien, president of the home owners association, was painful to watch. O’Brien another witness who can’t substantially add to the prosecutions case turned out to be disastrous, not only did he testify during examination-in-chief to an incident in which a black teen burglar had been apprehended because citizens had followed him at a distance, he acknowledged under cross examination that his understanding of the neighbourhood watch programme was that it was okay to follow at a safe distance and be the “Eyes and Ears” of the police.  Of course that moron Mantei, had to re-address that point twice on re-examination, which made him look like he was bullying the witness and won’t change what he said. Conversely when O’Brien told O’Mara he didn’t see the need for neighbourhood watch, O’Mara said “okay” and moved on.

 

 

Terrible day for Prosecution in Zimmerman Trial

As I said in my previous post the lost of the prosecutions “expert” witnesses is a game changer and boy was that obvious today. The prosecution star witnesses is Sean Noffke the 911 dispatcher, who took the non-emergency call from George Zimmerman. We know that because Prosecutor John Guy opened up with a comment Zimmerman made to Sean Noffke during that conversation. Without their dubious voice “experts”, Noffke is the only witness who could testify that Zimmerman was acting with a depraved mind on that night, which is the necessary element to prove murder in the second degree in Florida.

Any decent lawyer knows you keep opening statements dry and full of facts because the jury isn’t going to remember what you said but the judge is.  John Guy ignored who opened for the prosecution ignored that rule. His opening was truly dreadful. He summed up the case as Two Worlds Colliding. So my bet is he was listening to INXS or Paloma Faith on the way to court this morning?

Once you strip away the ham acting and finger pointing, all we were left with was an admission that none of the witnesses actually saw the incident from beginning to end, or saw Zimmerman firing the shot, a contact wound to the chest (which suggests a struggle) and Martin on top of Zimmerman. He  talked about the bone chilling 911 call, where the jury would hear Martin being shot and implied that the voice screaming was Martins by way of the faulty logic that if the screaming stopped after the shit it must have been Martin, which the defence easily refuted by pointing out that Zimmerman had no reason to scream after the shot was fired and also pointed out that both sides agreed that it was a prolonged scream from someone in fear of their life. Guy main argument was centred around Zimmerman’s “hate filled words”.

Don West’s opening defence statement started off badly — a knock, knock joke — it went down like a led balloon and although he got a laugh when he said “come on that was funny”, he was tumbling around with his evidence but once he got started he destroyed the prosecution on every point. It was an opening statement to the judge as much as the jury.

But the real fun began with the witnesses. First up, Chad Joseph, Martin’s father’s girlfriend’s 15 year old son, who was allegedly playing computer games with Martin the day he was shot and who Martin allegedly bought a packet of skittles for. Joseph could add no information to the prosecution case but they called him to humanise Martin. Big Mistake! He testified that Martin didn’t take any phone calls when he was with him and he couldn’t remember how long they played video games. We know martin received phone calls  , which undermines his account of being with Martin. He also testified the path from his house was within throwing distance from where Martin was.

Next up, Andrew Gaugh, the 7-11 shop assistant, another witness the prosecution really didn’t need to call. O’Mara used him very effectively to point out that Martin was acting suspiciously. Watching the videos, Martin looks incredibly suspicious and appears to steal something from the 7-11. But Gaugh is clearly watching him and following him around the store. O’Mara points that out to Gaugh, who can’t remember anything. Had the prosecution not have called him, O’Mara wouldn’t have been able to ask him those questions if he was a defence witness. You can’t ask leading questions of your own witnesses.

Lastly, Sean Noffke, the 911 dispatcher and the State’s star witness — or at least until he was cross examined — he couldn’t have been more neutral or honest, which is exactly what the defence wanted. He testified that he could hear no hostility in Zimmerman’s voice and was not in the least concerned about anything he said, and further admitted that the instructions he gave Zimmerman could be interpreted as a request to follow Martin. Noffke also testified he saw nothing wrong or racist in Zimmerman’s description of Martin. Hence the prosecution’s star witness testified that Martin didn’t have a depraved mind and didn’t profile Martin, which makes it difficult if not impossible to meet the criteria for murder in the second degree.