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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, July 16, 2013

Media Misreporting and the George Zimmerman/Trayvon Martin Trial

It has been fascinating/disturbing to see just how much the media has gotten wrong throughout the course of the George Zimmerman/Trayvon Martin case and its aftermath. The biggest error, of course, has been the focus on Stand Your Ground laws when Florida's Stand Your Ground law was not invoked by the defense. Then, there were the minutes/hours/days after the judge's ruling during which many did not realize that the judge had ruled that the defense could use its animation as demonstrative evidence. Now, in the aftermath of the jury verdict, we have more misreporting, this time concerning the defense's motion against the prosecution based upon alleged Brady violations.

As reported here and elsewhere, the defense is moving for sanctions against the government based upon failure to timely disclose evidence in compliance with the Supreme Court's opinion in Brady v. MarylandBrady states that the prosecution has a duty to timely disclose to the defendant material exculpatory evidence. Material evidence is evidence that has a reasonable probability of producing a different outcome at trial.

According to the defense, the prosecution failed to timely disclose, inter alia,

embarrassing photos on Martin's phone that included pictures of a clump of jewelry on a bed, underage nude females, marijuana plants and a hand holding a semi-automatic pistol.

 The prosecution has responded that the offending party was its information technology director, Ben Kruidbos, who has since been fired.

So, was there a Brady violation? This article makes the answer seem to be a clear "yes." It quotes Mark O'Mara as saying that the failure to timely disclose the phone evidence was "an undeniable Brady violation." It also notes that

The law requires prosecutors to share evidence with defense attorneys, especially if it helps exonerate defendants. The requirement is known as the Brady disclosure.

That's just terrible reporting. You can't have an entire article focused on an alleged Brady violation and misstate the law this badly. The first sentence should read, "The law requires prosecutors to share evidence with defense attorneys but only if it helps [materially] exonerate defendants." There is no obligation under Brady to disclose inculpatory evidence, and there is no obligation to disclose non-material exculpatory evidence.

I would likely characterize the phone evidence as non-material exculpatory evidence. First, there is a good chance that the evidence was inadmissible. Simply put, it is likely inadmissible character evidence, and some of it, like the pictures of underage nude females, had no connection to the issues at trial. Many courts state that inadmissible evidence can never be "material" for Brady purposes. Florida courts actually do find that inadmissible evidence can be "material" for Brady purposes if "the evidence would lead to admissible substantive or impeachment evidence." Duest v. State, 12 So.3d 734 (Fla. 2009). That said, I simply don't see how the phone evidence described would have led to any admissible evidence that would have helped Zimmerman.

Second, even if the phone evidence were somehow admissible, I don't see how it really would have helped Zimmerman. Again, the nude photos had no relation to trial. The defense already presented evidence about Martin's drug use, so the picture(s) of the marijuana plants wouldn't have helped them any more. The fact that Martin once held a pistol seems meaningless considering that Martin didn't have a gun during the encounter. And I'm not sure what inference I'm supposed to draw from the jewelry.

The best thing that could have come from the trial was accurate reporting and and honest dialogue about the way that minorities, and especially minority men, are treated by the criminal justice system. Instead, the misreporting regarding the trial has distorted the issues and led to a focus on the wrong things.

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/07/it-has-been-fascinatingdisturbing-to-see-just-how-much-the-media-has-gotten-wrong-throughout-the-course-of-the-george-zimmer.html

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Comments

I am no criminal law expert,but I think the pile of jewelry photos would probably be the most useful piece of potential evidence. Zimmerman suspected Martin of being a burglar. I would think the defense would use this to imply that a teen aged boy might be photographing himself with "spoils" of burglary...I don't necessarily agree with that, but it would seem to be a logical premise for the defense in a Brady setting.

Posted by: lionel hutz | Jul 18, 2013 9:19:39 AM

Lionel: Interesting. The problem with that argument would seem to be (1) that Martin clearly wasn't committing/planning a burglary at the time of the encounter; and (2) Zimmerman had no knowledge of any criminal history by Martin. I therefore don't see how the evidence would be relevant/admissible.

Posted by: Colin Miller | Jul 18, 2013 10:45:12 AM

What would lead you to believe he " clearly wasn't *planning* a burglary at the time of the encounter"? I have no reason to believe he was or wasn't. I would be interested to know if the picture of that jewelry would match what the jewelry that was confiscated at his high school, and the trail of how he obtained the items. I would think someone that had committed a burglary near his high school would find examining the neighborhood of his dad's girlfriend for potential targets a strong possibility.

Posted by: Rob | Jul 19, 2013 11:48:47 PM

Requiring the Brady evidence to be material and admissible allows prosecutors to determine what is material and admissible, rather than a judge. Once there is a conviction, the courts are reluctant to overturn a conviction based on a Brady violation because the evidence is viewed in the light most favorable to the government or in favor of the judgment.

I'm also of the opinion that inculpatory evidence should be disclosed, because it can turn out to be just as "favorable" to the defense if the defense can find evidence or witnesses to refute it. If the inculpatory evidence is thrown at the defendant at trial, it can be too late to prepare for cross-examination and find and subpoena witnesses to refute the inculpatory evidence. Sometimes, it turns out the inculpatory evidence is perjury if presented to the jury, so it is unfair to not disclose inculpatory evidence so the perjury can be discovered before trial and exposed during trial.

An example is three police reports that were provided to me in a pro se jury trial (I was acquitted by the jury). The officers claimed in the police reports that I committed a felony(although, the DA charged me with a 90-day-jail misdemeanor). The three officers did very little that a cop would have done had they really thought I committed a felony. Further, the most telling was the report that and undisclosed-before-trial police witness did *not* write, because he refused to lie like the other three police officers (I asked the dreaded "why" question about why the truthful officer didn't write a report because no matter what the officer's said, I was pretty sure it would trap them (and it did, big-time). The DA claimed he didn't give me the information about the "hidden" officer during discovery because he just found out about the "hidden" officer just before the trial. None of the three police reports said a thing about another fourth officer being present (but they each mentioned the three of them in their police reports). If I had been denied the inculpatory evidence (the police reports themselves), I would never have been able to do such an effective job of showing a "conspiracy" to write false police reports by the three officers (instead of looking the alleged felon, the officers testified they immediately went to the police station to write their reports and didn't even bother calling dispatch (I requested the dispatch tapes during discovery) to tell them about the so-called felony. I did such an effective job in cross-examination (thanks, in part to the disclosure of the inculpatory evidence at trial rather than before trial, not necessarily my special skill at cross) that the DA decided not to call the third officer.

Posted by: Daniel | Jul 21, 2013 9:45:02 PM

Daniel: Good point, and that's why some have called for the prosecution to disclose potential Brady material to the judge to decide. See, e.g., Gregory S. Seador, A Search for the Truth or a Game of Strategy, 51 Syracuse L. Rev. 139 (2001).

Posted by: Colin Miller | Jul 22, 2013 5:09:06 AM

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