Tuesday, July 09, 2013

At AOL’s Huffington Post, Trayvonista Law Professor Bennett L. Gershman Tries to Deceive Readers into Believing George Zimmerman’s Defense Team is Getting Away with Murder

Posted by Nicholas Stix

This is a ridiculously frivolous and dishonest op-ed. I have been watching this trial since the first day of testimony. “Prosecutor’s assistant” (John Derbyshire) Judge Debra Nelson sustained every prosecution objection the first three days, no matter how specious they were, while overruling every defense objection, no matter how well grounded. Since then, she has been only slightly less obviously prejudiced on behalf of the prosecution.

Bennett Gershman found one lousy instance in which the defense may have gotten away with helping their client, and so he is emphasizing it, in order to deceive readers about how the trial is going, to try and make them believe that the defense is getting away with murder.

Just because this is an opinion column does not grant him license to misrepresent the facts.

Another important fact for readers to ponder that Gershman does not want them to know: Investigator (=Detective) Chris Serino withstood intense political pressure to lie about his investigation, in order to justify prosecuting Zimmerman. Serino then suffered the political retaliation of being demoted back to patrolman.

In other words, knowing about Serino’s estimation of Zimmerman’s honesty, and about the efforts of powerful people to force Serino to lie about Zimmerman, really is crucial to this trial, i.e., to the jury.

I tried posting the foregoing at HP at least three hours ago, but the thread Nazis have so far not permitted it. About 40 minutes later, I posted a more innocuous comment, in response to a lefty commenter enjoying carte blanche, which they eventually permitted:

20 Fans
5 hours ago ( 5:30 PM)

It really doesn't matter-----Zimmerman will be found "Not guilty" and there be no justice in the criminal justice system for his killing of Trayvon Martin. after all....this is Florida. They do things differently there.....i.e. the 2000 election recount fiasco which led to the Supreme Court crowning George Bush as US President. They also seem to have a different and strange sense of what is needed in order to be found guilty of murder. Prime ....example the Casey Anthony case and the "Not Guilty' verdict. (guess in some jurors' minds---Casey was defending herself against Caley).

Hopefully Trayvon's family will pursue a civil case against Zimmerman-----it won't be justice but it will at least be something.

N.S.: “i.e. the 2000 election recount fiasco which led to the Supreme Court crowning George Bush as US President”

You mean the 2000 Florida Disenfranchisement Hoax, where Democrats turned thousands of ballots with no vote for president into votes for Al Gore? Statisticians at the time said the odds of all those votes magically becoming Gore votes (and none Bush votes) were a trillion to one. At the time, Sen. Bob Kerry fled a place where votes were being “recounted,” so as to avoid being a party to (or having to testify as to witnessing) a felony.

That would also be the post-election in which it was the Democrats who tried and failed to get Gore selected president, first using the Democrat-controlled Florida Supreme Court to violate state election law, in order to give Democrat vote-counters time to manufacture more Gore votes. That tactic eventually blew up in their faces at the U.S. Supreme Court, at which point Democrats changed their story to “Bush was selected, not elected.”

I’m no Republican, and I despise George W. Bush, but vote fraud has always been a Democrat method, and the Party’s various attempts to steal the 2000 election make for a classic case study.

I also responded to this one, though my comment has yet to be permitted. Note, however, that they’ve only permitted 39 comments so far, i.e., they’ve got the hammer down.

2 hours ago ( 9:03 PM)

There's nothing political about this. If Trayvon had been injured rather than killed, there's no question that this would be going to court. He wasn't just injured, though, he's dead. If Mr. Zimmerman had killed Trayvon Martin by hitting him with his truck while the kid was crossing the street, he would have been charged with manslaughter or whatever local law was applicable, and the judge and jury would decide whether or not he was at fault. Trayvon's family would deserve that much.

They deserve that much now, do they not? If my kid was killed in the same circumstances, I wouldn't rest until the case was before a judge and jury. Apparently, Trayvon's parents felt the same way. If it had been your kid, wouldn't you?

Would you be willing to accept that after scaring the crap out of your kid by following him through the neighborhood in his truck, this armed man saw your kid as enough of a threat that it was okay for him to kill your kid? Or would you demand that he defend his actions in court?

N.S.: “If it had been your kid, wouldn't you?”

That’s a tough comparison to make, considering that my son isn’t a racist, drug-abusing (and possibly drug-dealing), ultra-violent vandal and burglar.

* * *
Instructing Zimmerman Jury Not to Think About a Pink Elephant
By Bennett L. Gershman
Professor of Law, Pace
Posted: July 8, 2013, 3:12 p.m.
Huffington Post (AOL)

During his cross-examination of Officer Chris Serino last Monday, Mark O'Mara, George Zimmerman's lawyer, asked Serino a highly improper question. After establishing that there were no significant discrepancies between Zimmerman's description of his encounter with Trayvon Martin and the physical evidence and statements from neighbors, O'Mara asked Serino: "Do you think he was telling the truth?" Without any objection from the prosecution, Serino answered "Yes." The judge then recessed for the day.

The following morning, after hearing arguments from the prosecution, the judge instructed the jury to ignore Serino's comment that he believed Zimmerman was telling the truth. The judge's instruction to the jury to disregard Serino's comment was clearly correct. It is a well-established rule of courtroom testimony that a witness is forbidden from commenting on the credibility of another witness, or as in this case, the credibility of Zimmerman. It is the exclusive function of the jury to make determinations of credibility, and a lawyer subverts this principle when he or she invites a witness to endorse the credibility of someone else. Indeed, convictions in child sexual abuse, domestic violence, rape, and drug prosecutions have been reversed when prosecutors asked experts to give opinions that validate a victim's or a witness's truthfulness, or even assert that a victim has in fact been abused.

The judge's instruction is familiar to persons who follow jury trials. Courts are committed to the theory that juries can disregard prejudicial evidence or improper conduct when properly instructed by the trial judge. Such "protective" or "curative" instructions are used to advise the jury to erase from its collective consciousness a prejudicial event that has occurred during the trial that may likely distort its deliberations and verdict. Such instructions are commonly used when inadmissible evidence has been received, or prejudicial remarks are made by counsel, witness, or even the judge, or any other occurrence that could impair the integrity of the trial. Indeed, if the error or misconduct is serious enough, the judge could declare a mistrial.

But regardless of the theory behind such curative instructions, the bigger question is whether juries are capable of following such an instruction. One is reminded of the courtroom moment in the classic film Anatomy of a Murder when the defense attorney, played by Jimmy Stewart, is cross-examining the prosecution's medical examiner in a murder case in which the defendant claimed the victim had just raped his wife. After getting the doctor to admit that his examination could have revealed that the deceased had recently ejaculated, thereby supporting the defense, Stewart then asks whether the witness was instructed by the prosecutor to conduct an examination that only would be useful to the prosecution, but none that would be useful to the defense. The prosecutor screams an objection and the judge, noting the impropriety of the question, instructs the jury that the question would be stricken and to disregard the question. Stewart the returns to counsel table, his associate smiles, and his client whispers, "How can a jury disregard something they've already heard?" Stewart answers, "They can't. They can't."

Instructing a jury to disregard something they've already heard has been assailed as a fiction, a judicial fraud, and tantamount to telling a jury to "un-ring a bell." If anybody happens to be reading this post, I would ask the reader, as I ask students in my evidence class, not to think about a pink elephant. In fact, such instructions may be counter-productive in calling the jury's attention to matters that it otherwise may have already forgotten, or, as in the Zimmerman case, give added prominence to testimony that the jury has absorbed for several hours.

Are juries capable or willing to follow such instructions? Or, to be more precise, will the Zimmerman jury follow the judge's instruction to disregard Serino's testimony that he believed Zimmerman was telling the truth? Apart from our intuition, psychological studies of jury decision-making suggest that jurors are not successful at ignoring information they have been given, even when a judge instructs them to disregard the information. Although it is not a simple task to analyze why a judge's instruction to a jury to disregard information is ineffective, it is possible from the studies to conclude that juror decisions are influenced by attitudes and biases about crime, police, the justice system, and about the outcome of a case that they believe may be just.

So, will the Zimmerman jury follow the judge's instruction? Or will it be influenced by Serino's assertion of Zimmerman's truthfulness? We'll see.

No comments: