Now that the verdict is in and George Zimmerman has been found “not guilty” of any crime, some people are wondering if the state attorneys could have done a better job. I have been closely following this case because I was asked to appear on CNN a number of times to discuss it. It was a fascinating trial, and a great learning experience.
Like many people, I believe there was sufficient evidence to prosecute George Zimmerman for both murder and manslaughter, and the decision to bring him to trial was the right one. The real question is whether the state prosecutors could have done a better job in prosecuting this case and obtaining justice for Trayvon Martin and his family.
While I think the lawyers on both sides tried a fairly good case, I think there were five critical mistakes made by the prosecution that cost them this trial.
1. The state never had a consistent and believable version of how George Zimmerman actually killed Trayvon Martin.
Every trial lawyer knows that it is virtually impossible to win a case in front of a jury if you cannot provide them with a story about how the crime occurred that makes sense. While most people like to think that trials are a search for the truth, trials are really a competition between competing versions of the truth. Whichever side has the most credible and compelling version of the incident will usually win the case.
This is especially true if you are a prosecutor in a criminal case. To convict someone of a crime, a prosecutor must give the jury an explanation of how the defendant actually committed the crime. It is nice to also be able to show why the defendant committed the crime, but that is not nearly as important as telling the jury how the crime occurred. The story of how the crime occurred must make sense, and it must be consistent with the evidence.
In this trial, the state attorneys gave an opening statement that was full of expletives and outrage. The prosecutor told a story of an angry man who was out to wreak his version of justice on an unsuspecting and entirely innocent black teenager. The problem with that story is that the state never presented evidence to adequately support it. They over-promised what they could prove.
Just as importantly, the state attorneys never told the jury exactly how George Zimmerman committed this crime. The prosecutors appeared to believe that they could win a conviction if they simply got the jury to believe that George Zimmerman was a bad man and that Trayvon Martin did not need to die. But that is only part of the story. The prosecution needed to lay out their version of how the crime occurred in a way that could be supported by the facts and evidence in the case.
Not only did the prosecution not lay out a credible version of how the crime occurred, they were not even consistent in the story that they did present. Several times during the trial it appeared that the prosecution changed its theory about how the fight between George Zimmerman and Trayvon Martin occurred. At one point, it appeared that the prosecution was even conceding the fact that Trayvon Martin may have been on top of George Zimmerman and punching him. While a defense lawyer can get away with arguing alternatives to the jury, a prosecutor should never make inconsistent arguments. Jurors will quickly pick up on this, and it will significantly damage the prosecutor’s credibility with the jury.
2. The state called too many witnesses who hurt their case more than they helped it.
There is no question that several of the witnesses called by the prosecutors helped George Zimmerman more than they hurt him. John Good, the neighbor who testified that he saw George Zimmerman being beaten by Trayvon Martin, was a particularly effective defense witness. The same is true for most of the law enforcement officers, especially Detective Serino.
Many legal commentators and analysts have suggested that the state attorneys needed to call these witnesses, even if they did not help their case. The general consensus is that a prosecutor should call all fact witnesses that may be arguably relevant to the case because it is a prosecutor’s duty to “seek justice” and not just win a conviction. I disagree.
A trial is basically a fight between two opposing parties. The rules of law and procedure are there to make the fight as fair as possible. Both sides get the opportunity to call witnesses and present evidence, and both sides get the opportunity to challenge the other side’s case. All of the witnesses that you call in your case must support your version of what happened. If they do not, then you are not presenting a consistent story to the jury and you will lose.
I have no doubt that the defense attorneys would have called these witnesses if the prosecutors had not. But if you call witnesses that are favorable to the other side, you are vouching for their credibility to the jury. You are telling the jury that you believe these witnesses or you would not have called them to testify. Just as importantly, you are putting these witnesses in the middle of your case and allowing the defense lawyer to argue his case through your witnesses, before the defense has had to call a single witness to the stand. By the end of the state’s case, I believe that many if not most jurors had already made up their minds that the state was not going to be able to prove George Zimmerman guilty beyond a reasonable doubt.
3. The state should not have introduced Zimmerman’s pretrial statements and interviews.
I understand why the state attorneys decided to introduce George Zimmerman’s pretrial interviews and statements into evidence. They were hoping that they could convince the jury that there were many inconsistencies in these statements, and that George Zimmerman lied about what happened that night.
I think these statements did show that George Zimmerman was inconsistent about what happened, and may very well have lied about several things. But the vast majority of his pretrial statements were helpful to the defense. They laid out George Zimmerman’s self-defense claim and allowed him to speak to the jury without ever having to take the witness stand. More importantly, his statements were made credible by the state witnesses (mostly law enforcement officers) who believed George Zimmerman’s story about what happened. The end result is that the prosecutors put George Zimmerman’s self-defense claim into evidence, then called witnesses to vouch for his credibility and support his story. That was without a doubt the biggest mistake they made during this trial.
In my mind, there is no question that George Zimmerman would have taken the stand if those pretrial statements and interviews had not been introduced. George Zimmerman would not have been able to tell his story, and make a claim for self-defense, if he did not lay out his version of what happened that evening. He did not have to take the stand because the state attorneys laid out his self-defense argument for him.
Had he taken the stand, the state attorneys could have cross examined him on any inconsistencies. An effective cross-examination would have shown the jury that he was lying about some things or, at best, confused and not credible. The state attorneys’ argument to the jury that George Zimmerman was lying would have been much more effective if George Zimmerman had actually been a witness.
An effective cross examination of George Zimmerman may very well have won the trial for the state. The credibility of a defendant who testifies often becomes the sole issue in a criminal trial. A jury may forget about weaknesses in the state’s case if they believe that the defendant has just taken the stand and lied to them about what happened. Even if those lies are not significant, many jurors will disbelieve everything else the defendant says about what happened, even if those inconsistencies are relatively minor.
4. The state attorneys should have used less emotion and more evidence in presenting their case.
I completely understand the reason why the prosecutors used emotion in both their opening and closing arguments. After all, this was an emotional case. There was a dead, unarmed teenager who was unquestionably shot and killed by a man who had previously expressed his feelings about what he called “these f____ punks.” But emotion does not make up for a lack of evidence, especially if you are a state prosecutor.
Most trial lawyers will agree that a lawyer should never be more outraged about his or her case than the jury. A highly emotional closing argument can be very effective if the evidence is there to support it. But the jury must share your feelings or you are out there all alone looking somewhat ridiculous.
For the most part, the state did not present an emotional case. The witnesses they called were fairly dry, and their questioning of these witnesses was mostly by the book. Even when the state had an opportunity to present emotional during the trial, they did not take advantage of it. Trayvon Martin’s family members and friends could have been very convincing if allowed to talk about Trayvon as a person, and how much he meant to them personally. But the state attorneys never asked them those questions.
Anyone sitting in the courtroom during the trial could tell that this jury was not overly emotional about the case. They were copiously taking notes during the defense closing argument, and simply stared at the prosecutors during their portion of the final arguments. If a lawyer is more emotional than the jury, then the jury is likely to think that the lawyer either misunderstands the case, or is putting on a show. Either way, it is not at all effective and rarely helps you win.
5. The state attorneys should not have given a press conference before speaking with the victim’s family.
While this criticism has nothing to do with the way the state attorneys handled the trial, it has a lot to do with the way they handled their obligation to Trayvon Martin’s family. It was incredible for me to hear that the special prosecutor had decided to speak to the media without first talking to Trayvon Martin’s family about the verdict. When you lose a trial, the people that you are representing want to know why. They are often confused and upset. They understandably want some answers as to why their side lost.
Legally, prosecutors are not obligated to represent victims and their families. A prosecutor’s obligation is to represent the state. Of course, the reality is that there is no lawyer to represent the victim in a criminal trial so the prosecutor must accept that burden as part of his or her job. Once you accept the fact that the victim is your client, and you are the only person who can give that victim a voice in court, then you have an ethical and even a moral duty to counsel them before, during and after the trial.
The bottom line is that George Zimmerman is a free man because the state did not disprove his claim of self-defense beyond a reasonable doubt. I believe these five mistakes contributed to that result. I honestly think that state attorneys could have convicted George Zimmerman had they done things differently. I understand that my criticisms are all offered in hindsight, and that it is relatively easy to be a “Monday Morning Quarterback” after the trial is over. In a case of this significance, however, I think it is important to point out what mistakes may have been made so that lawyers, as well as the public, can learn from them.
I am sure the state attorneys would not try this case the same way if they had the chance to do it again. Unfortunately for Trayvon Martin’s family, they will never have that chance.
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.