Wednesday, July 10, 2013

Got Walter Raleigh in a can?

King James I of England, in the early 17th century, had a man tortured (as best as historians can tell) into confessing to a treasonable act on the part of the late Elizabeth I's favorite, Sir Walter Raleigh. That testimony was then admitted into Raleigh's trial without that witness present, on the basis that two men heard the confession. Raleigh was convicted, and eventually beheaded (bizarrely, after the King released Raleigh, temporarily, to avail himself of Raleigh's needed services outside of England, and Raleigh voluntarily returned to England to suffer his execution).

From that miscarriage of justice, English Common Law and later, American law developed the 'hearsay evidence' rules designed to prevent oral testimony that could not be cross-examined by the adverse party, being used against a defendant. I.e., to prevent a defendant being railroaded, without the ability to challenge his accuser. This 'hearsay' rule has become an issue in the George Zimmerman murder case.  Not, as the rule developed, to prevent an unjust conviction with oral testimony, but to prevent a defendant's introducing text messages from a cell phone belonging to a man who is dead and unavailable, that would be exculpatory.

Judge Debra Nelson ruled against the defense, keeping out the exculpatory evidence because, she claimed, any seven year old can get hold of someone's cell phone and use it without authorization.  No, we are not making that up.

First, the judge seems to be ignoring the Supreme Court's ruling in Chambers v Mississippi, that the hearsay rule should not be applied in a mechanistic way if that would be an obvious miscarriage of justice. She also is ignoring a Florida Appeals Court decision of recent vintage, State v. Lumarque, that reversed a trial court's decision to exclude text messages on grounds that they couldn't be authenticated.

Second, while it is possible some seven year old could have done something, there is no evidence that that in fact happened. Nor, are the laws of probability any help to her, because there are thousands of such text messages on Trayvon Martin's cell phone, making the likelihood of someone other than Trayvon being the author of those sent from his phone, somewhat beyond ridiculous.

Third, the text messages are clearly relevant to the prosecutor's theory of the case; they destroy it.

Or, as the prosecutors put it, it is prejudicial to them. Again, we are not making that up. The prosecutors are keeping out evidence that Trayvon Martin had engaged in fights (with some proficiency) shortly before he attacked George Zimmerman on February 26, 2012, because it is prejudicial to their claims that it was Zimmerman who started the fight that ended with Trayvon Martin being by Zimmerman. Even after they made much of their assertion that it was in fact Zimmerman who was trained in martial arts--later exploded by a defense witness who testified that Zimmerman was inept, as a fighter and generally as an athlete.

The prosecutors argued, successfully, that they are entitled to a conviction. All this broadcast on television and the internet for the entire world to see.  Along with the hissy fit thrown by the judge when the defense attorneys attempted to to object to her treatment of them (including keeping them in court til after 10:00 PM with a call to return to court at 8:00 the next morning). The judge actually turned her back and walked out of the courtroom while the defense attorneys were talking to her.

In the unlikely event that Zimmerman will be convicted of anything in this show trial, that conviction will not survive an appeal based on last night's courtroom fiasco.

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