Suspicion Nation Read online

  A more significant credibility issue is at stake when witnesses deviate in their trial testimony from recorded interviews. Those inconsistencies can be fatal before a jury, so bringing them up on cross-examination is Lawyering 101. Dr. DiMaio had appeared on NBC’s Today Show on May 13, 2012,64 discussing the autopsy results after they had been leaked. At that time, Dr. DiMaio said only that the stippling (gunshot residue) around the bullet hole in Trayvon’s body showed that “the range was most likely between two and four inches.” Dr. DiMaio did not in that interview say that the gunshot wound confirmed Zimmerman’s story, that Trayvon was on top, Zimmerman on the bottom, at the time of the shooting—his ultimate conclusion now at trial.

  This was the big, important opinion he offered to the jury, one that he emphasized was so easy to reach. “This is not exactly a complicated case forensically,” he told the jurors. He hadn’t been required to put a lot of hours into the case because this conclusion was so obvious to him, he told them.

  Then why hadn’t he breathed a word of it on the Today Show, after he’d reviewed the same autopsy results he was now testifying about? Why hadn’t he even suggested that this conclusion was possible? The prosecution never asked. When did this conclusion become so obvious to him? Was it only after he was offered $400 an hour to testify on Zimmerman’s side?

  While we’re on the subject of the witness’s credibility—a standard cross-examination topic—the jury learned that Dr. DiMaio had testified in recent years in two other high-profile murder cases, the Drew Peterson case (the Illinois police officer accused of drowning his third wife Kathleen Savio in the bathtub, and who is a suspect in the disappearance of his fourth wife, Stacy Peterson) and the Phil Spector case (the music producer accused of fatally shooting a woman, Lana Clarkson, in his Los Angeles mansion).

  On this subject, the cross-examination went like this:

  PROSECUTOR: You’ve testified in other high-profile cases?

  DR. DIMAIO: Yes.

  PROSECUTOR: You testified in the Phil Spector case? And Drew Peterson?

  DR. DIMAIO: Yes, I did.

  And that was it on this subject. Nothing more. This only bolstered his image as an important expert called upon to give his opinion in high-profile murder cases. But cross-examination seeks to discredit a witness, to expose the weaknesses in his credibility or testimony.

  Here’s how it should have happened, if it were done by an aggressive prosecutor who set out to undermine the opposing side’s best witness:

  PROSECUTOR: You enjoy testifying in high-profile cases, don’t you?

  DR. DIMAIO: Well, I don’t know if I enjoy it. Maybe I do.

  PROSECUTOR: Well, you’ve testified recently in two other murder cases that got a lot of media attention, didn’t you?

  DR. DIMAIO: I suppose I did.

  PROSECUTOR: You testified in the Phil Spector murder case, right?

  DR. DIMAIO: Yes.

  PROSECUTOR: And in that case you were retained by the defense?

  DR. DIMAIO: Yes.

  PROSECUTOR: In other words, you were testifying on the side of the accused murderer, Phil Spector?

  DR. DIMAIO: Yes.

  PROSECUTOR: And just briefly, in that case he was accused of intentionally shooting a young woman, Lana Clarkson? And you testified that the science proved that he didn’t do it, but in fact that she killed herself?

  DR. DIMAIO: I believed it was a suicide, yes.

  PROSECUTOR: And you lined up all the medical and scientific testimony in that case, and told the jury it all added up to suicide, right?

  DR. DIMAIO: It was consistent with suicide, yes.

  PROSECUTOR: And what was the outcome of that case?

  DR. DIMAIO: He was convicted.

  PROSECUTOR: Convicted of murder and sentenced to nineteen years to life in prison?

  DR. DIMAIO: Yes.

  PROSECUTOR: So the jury didn’t believe your testimony in that case? They rejected it?

  DR. DIMAIO: They convicted him.

  PROSECUTOR: Now let’s just quickly talk about the Drew Peterson case. This was the infamous Illinois cop whose fourth wife, Stacy, went missing and was never found? And his third wife also died under mysterious circumstances, and he was on trial for her murder?

  DR. DIMAIO: That’s the case.

  PROSECUTOR: And you testified on behalf of the accused murderer in that case too, just like you did in the Phil Spector case, just like you’re doing here?

  DR. DIMAIO: Each case is different, but yes, I testified for the defense.

  DEFENSE ATTORNEY: Objection, Your Honor, relevance.

  PROSECUTOR: His credibility is at issue, Your Honor. And I just have a few more questions in this line.

  JUDGE: Finish up, counsel.

  PROSECUTOR: Yes, Your Honor. And in the Drew Peterson case, you testified that the scientific and medical testimony was consistent with the defense theory of that case, which was that Kathleen Savio had an accident alone in her bathtub, while she was in the middle of a contentious divorce with Drew Peterson? That she caused her own death?

  DR. DIMAIO: I believed the evidence pointed to that, yes. I still believe that.

  PROSECUTOR: How did that case turn out?

  DR. DIMAIO: He was convicted.

  PROSECUTOR: Of murder?

  DR. DIMAIO: That’s what he was convicted of, yes.

  PROSECUTOR: So the jury rejected your testimony in that case, too?

  DR. DIMAIO: You could look at it that way. There was a lot of other evidence in the case, too.

  PROSECUTOR: If the jury believes you in this case, then, gosh, I guess it would be the first time a jury believed you in a high-profile murder case in the last decade, wouldn’t it?

  The jury would then be primed for cross-examination of Dr. DiMaio on the facts of this case, which could have begun with the highly unscientific manner in which he’d demonstrated the key issue of Trayvon’s sweatshirts separating from his body. In explaining his theory to the jury, Dr. DiMaio had often used his own fitted men’s dress shirt that he happened to be wearing that day, leaning forward, leaning back, pulling his shirt away from his body. This was fertile ground for cross-examination, though the state failed to explore it.

  What actually happened was that Dr. DiMaio admitted a lack of familiarity with hoodies, laughing along with the prosecutor, suggesting that they were both old men who don’t wear that type of thing, ha ha. Not funny. He is testifying on behalf of an accused murderer, trying to use science to acquit him, softening up the jury with each bit of laughter he can share with them.

  Another missed opportunity. Science demands testing, experimentation, replication. And using the right sample to begin with. De la Rionda mentioned only that hoodies are worn big, emphasizing that they “hang down.” He went on to state that “something in it”—the Arizona fruit drink—made Trayvon’s shirt a little tighter. It was entirely unclear what the point was here, and as so often happened during this trial, one could even forget which side the prosecutors were on.

  The state should have explained that in normal wear, a hoodie—this hoodie—is worn baggy and loose, and would have ballooned out from Trayvon’s body.

  It could have gone this way:

  PROSECUTOR: Dr. DiMaio, when you have been using your own shirt to demonstrate your theory of the case to this jury, that’s not scientific, is it?

  DR. DIMAIO: No, not really. I’m just using my own shirt to give them the idea.

  PROSECUTOR: In fact, it’s highly unscientific to use your own men’s dress shirt that you’re wearing today under your suit jacket to demonstrate anything about Trayvon Martin’s hoodie, isn’t it? Because it’s an entirely different kind of shirt? Different fabric, different cut, different size and style—as different as two shirts can be, really, aren’t they?

  DR. DIMAIO: It’s just a visual aid. I’m not saying it’s scientific.

  PROSECUTOR: You testified that you shot bullets into the heads of live animals to prove your gunshot residue theories?


  DR. DIMAIO: Yes, ha ha. [In fact, Dr. DiMaio had giggled when discussing his animal experiments, probably unaware that two of the six jurors rescued animals.] It was the only way to scientifically substantiate my hypothesis about powder tattooing.

  PROSECUTOR: Why is that funny? [Allow for uncomfortable pause.]

  DR. DIMAIO: Oh, it’s not. I apologize. But animal experiments are done by many scientists, not just me.

  PROSECUTOR: So it’s that important to you as a scientist—it’s important to all scientists—to test your hypotheses with conditions as close to the actual conditions at issue as possible?

  DR. DIMAIO: Yes, certainly.

  PROSECUTOR: So important that you’re willing to take the lives of animals?

  DR. DIMAIO: When necessary, yes.

  PROSECUTOR: And so in this case, since you’re testifying on behalf of an accused murderer that the science is consistent with his theory of selfdefense, it was important to you to conduct an experiment, using conditions as close to those involved here, to prove your theory is correct, right?

  DR. DIMAIO: Well, I couldn’t shoot a person, counsel.

  PROSECUTOR: Of course not. But you could do better than demonstrating with your own fitted dress shirt, couldn’t you?

  DR. DIMAIO: I’m not sure what you mean.

  PROSECUTOR: Trayvon Martin was wearing two sweatshirts on the night of February 26, 2012, wasn’t he?

  DR. DIMAIO: Yes.

  PROSECUTOR: Did you make any attempt to go online and purchase replicas of those shirts so that you could experiment on them?

  DR. DIMAIO: No, that wasn’t necessary. I had photos of them.

  PROSECUTOR: Photos? That’s what you worked with? Let’s take a look at the real thing. Here’s Trayvon Martin’s first layer, his inner shirt. At the bottom of that sweatshirt, there is a band of fabric that’s tighter than the material above it. Do you see that?

  DR. DIMAIO: Yes.

  PROSECUTOR: And do you see those lines extending up diagonally like a sunrise from the band at the bottom of the shirt, even when the shirt is pulled flat onto the exhibit?

  DR. DIMAIO: Yes, I see them.

  PROSECUTOR: That band at the bottom, and the extra fabric pulled into it, causes the sweatshirt to billow or bag out above the band when worn, doesn’t it?

  DR. DIMAIO: I suppose so.

  PROSECUTOR: That’s kind of the whole point, isn’t it? Kids don’t walk around in men’s dress shirts. The style is to wear these sweatshirts loose and baggy, right? That’s why this band is there around the bottom, to increase the bagginess of the shirt?

  DR. DIMAIO: I would assume so. I’m not a fashion expert, ha ha.

  PROSECUTOR (not laughing): But you’re testifying as an expert witness in this case, aren’t you? And key to your testimony is how this sweatshirt separated from Trayvon Martin’s body at the moment the defendant shot him, isn’t it?

  DR. DIMAIO: That is part of my testimony, yes.

  PROSECUTOR: And you never examined the actual shirts, did you?

  DR. DIMAIO: I looked at the pictures.

  PROSECUTOR: Now let’s examine Trayvon Martin’s outer sweatshirt, his hoodie.

  DR. DIMAIO: OK. I’ve seen the picture of it.

  PROSECUTOR: Well, then, let’s look at the actual shirt Trayvon Martin was wearing when he was killed. If the inner shirt is baggy, what happens to the outer sweatshirt?

  DR. DIMAIO: It would be baggy too.

  PROSECUTOR: And this one has a fabric band around the bottom as well, doesn’t it?

  DR. DIMAIO: It does.

  PROSECUTOR: So even without a shirt underneath it, it would bag out, away from the wearer’s body, wouldn’t it?

  DR. DIMAIO: That’s possible.

  PROSECUTOR: Would this hoodie have been worn tight fitting or loosely by Trayvon Martin?

  DR. DIMAIO: I don’t know. I didn’t see him wearing it.

  PROSECUTOR: And you didn’t purchase replicas of the shirts yourself, did you?

  DR. DIMAIO: I did not.

  PROSECUTOR: Did you find a mannequin the height and weight of Trayvon Martin, put both sweatshirts on that model, to see whether or not they pressed against the wearer’s body in a standing position?

  DR. DIMAIO: No, I didn’t.

  PROSECUTOR: Did you have a person the height, weight, and build of Trayvon Martin walk, turn, move, and run in those same two sweatshirts to see if they would be pressed against the wearer’s body in positions other than straddling and crouching?

  DR. DIMAIO: I did not.

  PROSECUTOR: Why not?

  DR. DIMAIO: It wasn’t necessary.

  PROSECUTOR: As a scientist, wouldn’t you agree that replication is an important part of the scientific method?

  DR. DIMAIO: Certainly.

  PROSECUTOR: And replication simply means that a scientist tests his or her theories to see whether they can be reproduced?

  DR. DIMAIO: That’s what it means.

  PROSECUTOR: And you never did that for your theory here?

  DR. DIMAIO: I did not.

  PROSECUTOR: Wouldn’t that have been a more scientific way to substantiate your theory?

  DR. DIMAIO: I only said that the evidence was consistent with the defense’s narrative, counsel. It could be consistent with other versions too.

  PROSECUTOR: It could? All right. So the gunshot residue could be consistent with Trayvon Martin standing at the time the defendant shot him?

  DR. DIMAIO: Possibly.

  PROSECUTOR: You don’t know, because you didn’t work with the actual sweatshirts? Or a mannequin or model wearing them?

  DR. DIMAIO: I didn’t.

  PROSECUTOR: And Trayvon Martin could have been moving, causing the outer sweatshirt to separate a few inches from his body? He could have hunched his shoulders, as many teenagers do? He could have moved quickly backward, causing the sweatshirts to billow forward?

  DR. DIMAIO: He could have.

  PROSECUTOR: You don’t know, because you didn’t test your theory?

  DR. DIMAIO: I didn’t.

  PROSECUTOR: And because you didn’t, you can’t say, sitting here today, that Mr. Zimmerman’s story that Trayvon Martin was straddled over him is any more likely than Trayvon Martin standing, backing away, hunching, or moving at the time he was shot, can you?

  DR. DIMAIO: They are all possible. I only said that the forensic evidence was consistent with Mr. Zimmerman’s account.

  PROSECUTOR: And that same forensic evidence is equally consistent with many other scenarios, too, isn’t it?

  DR. DIMAIO: It could be.

  In closing argument, the state could have then taken this and run with it, reminding the jury that Dr. DiMaio was willing to put bullets into the heads of innocent animals to be sure about some of his other scientific theories but couldn’t be bothered to buy a few sweatshirts to test his theories in this case. Maybe he didn’t think of it. Maybe he didn’t want to know how those tests would turn out. Maybe that would defeat his ability to earn the hefty expert witness fees and national fame by testifying so conclusively for the defense in this high-profile case.

  To further drive home the point, the prosecution could have called its own expert witness who had done such experiments with two sweatshirts the size and make of Trayvon’s, on a person or mannequin his height and weight, demonstrating that a few-inch gap between his hoodie and skin meant nothing, nothing at all. That gap could be found with Trayvon standing, hunching, walking, or in any one of myriad situations of dynamic movement of a physical altercation. Zimmerman could have been holding Trayvon’s shirt to prevent him from escaping (“they always get away”). Trayvon could have been quickly backing away from the guy with the gun, causing the can of fruit drink in his hoodie’s front center pocket to swing away from his body, creating a few inches of space. The possibilities are endless.

  In short, the state missed its chance to destroy Dr. DiMaio’s testimony.

  Other prosecutors, in other high-profile cases, have effectively
dismantled Dr. DiMaio for similar shoddy methodology. As we’ve seen, the jury convicted music mogul Phil Spector for the murder of Lana Clarkson notwithstanding Dr. DiMaio’s expert testimony on behalf of the murderer that the evidence was “consistent with” suicide. (The defense claimed that Clarkson, having just met Spector at a Hollywood nightclub, went home with him, found Spector’s gun, positioned herself in a chair next to the front door, purse over her shoulder, and killed herself. A slew of other women testified that when they tried to leave Spector’s home on prior occasions, he’d threatened them with guns.) In that case, Dr. DiMaio hid behind the very same “consistent with” language he used in the Zimmerman case, in an effort to position himself on the defense side of the case, even though the evidence could be readily interpreted several ways.

  Here’s how the very effective Los Angeles prosecutor Alan Jackson handled the cross-examination in the Spector case (I’ve edited the conversation for brevity):

  JACKSON: You testified yesterday and today … that the GSR [gunshot residue] is consistent with Miss Clarkson having fired the gun? You testified to that, correct?

  DR. DIMAIO: Which means I’m consistent with what I said in the first place, and I’m consistent when I publish, and that’s what I said it’s consistent with.

  JACKSON: And you didn’t say … it’s also consistent with Miss Clarkson not firing the gun, did you?

  DR. DIMAIO: No.

  JACKSON: Is there any reason you left that out of your testimony, Dr. DiMaio?

  DR. DIMAIO: Because that’s how you testify, consistent with. I mean, you know it’s just—never mind.

  JACKSON: Actually, you told the jury a half-truth. You didn’t indicate the second half of that statement, which the entire scientific community agrees with, Dr. DiMaio, which is gunshot residue will not tell you who fired a weapon, correct?