Suspicion Nation Read online

  DR. DIMAIO: Right, sir.

  JACKSON: And it’s also the GSR that appears on Mr. Spector’s hands are also consistent with him having fired a weapon; isn’t that true?

  DR. DIMAIO: Sure. You can argue it that way if you want.

  JACKSON: But you didn’t tell this jury that in your direct testimony either, did you?

  DR. DIMAIO: (No audible response.)

  JACKSON: Yes or no?

  DR. DIMAIO: No, sir, I did not.

  JACKSON: All right, thank you.65

  Stick a fork in him, he’s done. At that point, it was over for Dr. DiMaio in the Phil Spector case. No such moment came in the Zimmerman case because the prosecutors did not go for the jugular, and did not point out the same half-truths Dr. DiMaio was peddling to the jury on behalf of yet another killer.

  Dr. Bao told me that he very much wanted to be called back to the stand to respond to Dr. DiMaio’s testimony, which he found absurd and refutable. “No one could tell who was on top and who was on the bottom at the time of the shooting” based on the stippling or any other medical evidence, he felt strongly. “We just don’t know.” From the standpoint of science, not knowing is a valid opinion, not one to be laughed off, he insisted. Where there is a lack of evidence, certainty is what’s foolish. In other words, the gunshot residue was consistent with any number of scenarios. He asked the prosecution to call him as a rebuttal witness so that he could respond to Dr. DiMaio’s misstatements of the forensic evidence in the case. They refused to do so.

  In closing, the defense, predictably, asked the jury to consider the absence of such a rebuttal witness, asking why the state didn’t have one.

  The state never answered that question.

  FIVE

  The State’s Star Witness, Rachel Jeantel, Is Neutralized

  ONLY TWO WITNESSES in the trial could be said to give voice to Trayvon’s side of the story. The first was the medical examiner, who typically becomes the voice of the silenced victim’s body based on a careful review of the deceased’s remains. He shot me here, the bullet wound cries out, and then I couldn’t move. I wasn’t drunk, the toxicology reports say. I didn’t have my hands on his throat, Trayvon’s blood-free hands, had they been properly bagged on that rainy night, might have said on his behalf. I couldn’t speak, I couldn’t breathe, his lung wounds proclaim. And so on. As we’ve seen, the state and Dr. Bao, in concert, lost that opportunity.

  The second witness who could speak not for Trayvon’s physical body but for his all-important state of mind was his nineteen-year-old friend, Rachel Jeantel, who had spent five hours in a series of telephone calls with him on the day he was killed, including the final minutes when, she says, Trayvon saw Zimmerman, feared him, ran from him, lost him, and then was confronted by Zimmerman, who reappeared and initiated the physical altercation. She was the state’s most important fact witness at trial and the only one who could come close to presenting Trayvon’s version of what happened that night. Yet like Dr. Bao, she was ill-prepared to testify, spoke in diction that was at times difficult for many to understand, and was all but abandoned by prosecutors, depriving the jury of the essential information she had to offer.

  Every trial lawyer knows that a witness this important requires special attention before and during her testimony. People aren’t just flung into courtrooms, tongue-tied and apprehensive about what they’re supposed to do and say. Witnesses in general require trial preparation, and extra time and patience is needed with those who have never previously testified in court, those who are young, anxious, or reluctant, or who have shown previous problems in testifying (such as at pretrial depositions). Jeantel was all of these. And as the key witness for the state, she should have been prepared energetically and meticulously.

  Prosecutors like to say, “We don’t go down to central casting to choose our witnesses,” a truism through which they hope to separate themselves from witnesses who come across poorly on the stand, embarrassing them. (Though making such a statement in closing arguments is an insult to one’s own witnesses, as we shall see.) But every day in America, prosecutors put drug dealers, gang members, jailhouse snitches, and shackled prison inmates on the stand because their testimony, while imperfect, is crucial to locking up someone else. And they get convictions based on the words of those unsavory characters by preparing the witnesses to testify, educating them on how to put the clearest testimony straightforwardly before the jury, and then getting them off the stand as soon as possible.

  Rachel Jeantel, of course, was none of these. She was simply a fish out of water, an awkward rising high school senior removed from her Miami family and friends to the bewildering world of a distant courthouse, with a sea of satellite news trucks parked outside and police and lawyers and judges and headache-inducing questions and questions and more questions posed to her, leaving her defensive. The whole experience was a nightmare for her. In part, that’s due to the fact that she had no native guide to walk her through the unfamiliar terrain.

  In many cultures, direct questions are perceived as rude and confrontational. To many of us, conversations are most pleasant and natural when they are indirect and roundabout, when each speaker has the chance to chime in with her thoughts on the subject, or on another subject that may strike her fancy at the moment, related or not. If your friend doesn’t want to discuss an unpleasant topic, you’d be impolite to press her on it.

  Legal proceedings are the polar opposite of these social norms. Attorneys, usually strangers to the witnesses, pose blunt, personal, brazen questions (“Why didn’t you go to Trayvon’s funeral?”), and witnesses are expected to answer them clearly, directly, and fully, without any emotional reaction. If they don’t, the attorney repeats the inquiry, perhaps verbatim, perhaps changing a detail, honing in on the omission. The attorney knows all the tricks. The hapless witness must answer, answer, answer according to unfamiliar rules, and if she doesn’t, she’s in contempt of court.

  In my decades of experience examining and cross-examining witnesses, very few people are capable of responding directly to lawyer questioning. They’re not trying to be evasive, they are just being asked to speak a foreign tongue. Highly educated CEOs, doctors, and even lawyers who don’t practice litigation get stumped, their words twisted (in their view), annoyed at what they perceive as the hostile tone of the interrogation, being asked over and over again questions they are sure they’ve answered. Witnesses commonly cry, yell, spew profanity, run out of the room, or become enraged. Trial lawyers often consider it a victory to “break” a witness in this way because their emotional outbursts appear to undercut their credibility, and credibility is what it’s all about for any witness.

  Consider normal human conversation:

  DAVID: Hey honey, what’s for dinner?

  CARLOS: Something good! How was your day?

  DAVID: Oh, you know, a little of this, a little of that.

  CARLOS: Hey, after dinner, want to watch a movie?

  DAVID: Sure, whatever.

  David and Carlos hug. They are so happy together.

  Consider normal courtroom questioning:

  LAWYER: What did you have for dinner last night?

  FATIMA: Oh, it was pretty good.

  LAWYER: Objection, nonresponsive. (Sighs heavily.) Can the witness be instructed to answer the question?

  JUDGE: Please answer the question.

  FATIMA: I thought I did.

  LAWYER: Motion to strike that last answer.

  FATIMA: Oh, geez. I had lasagna, okay?

  LAWYER: What were the ingredients? What was in it?

  OPPOSING COUNSEL: Objection, compound.

  FATIMA: Wha—?

  JUDGE: Sustained.

  FATIMA: So should I answer … ? I’m confused.

  LAWYER: Please list everything that went into the lasagna.

  FATIMA: You know, a little of this, a little of that, whatever I had around, I guess.

  LAWYER: Don’t guess! Your Honor, the witness is not answering my questions!
She’s obfuscating!

  FATIMA: I’m—What?

  JUDGE: Ma’am, please focus on the precise questions being asked of you.

  FATIMA (exasperated): Whatever.

  JUDGE: Please wait for the question.

  Fatima is confused. Why is everyone jumping all over her? Over lasagna? Are these people nuts? The lawyers and judge are frustrated too. Recalcitrant witnesses just waste everyone’s time. Fatima obviously has something to hide, and lacks credibility, they think. The jury will never believe her story now.

  Now imagine that instead of that insignificant conversation about a meal, the lawyer is grilling you about the most horrific and shocking experience of your life. Sixteen months after her friend Trayvon was killed, Jeantel remained traumatized and emotional about the day that she’d been bantering on the phone with her friend, only to learn days later that he had been shot dead minutes after her call with him ended. She was not capable of processing it. (After the trial she said, “Death creeped me out. I don’t do death at all.” 66) People had the nerve to ask her why she didn’t go to his funeral. (“I didn’t put him at that funeral,” she pointed out later.)

  The unsettling point she repeated often, trying to get the lawyers to listen to her, was: I was the last one to speak to him. This fact spooked her. She didn’t know what to do with it. “You. Got. To. Un. Der. Stand,” she said in the courtroom, dragging out each syllable for emphasis. “I’m the last person. You don’t know how I felt.” Normal, decent Homo sapiens would respond to that with, “How awful. I am so sorry.” But in the courtroom, the grueling questioning continued. Later, she said to defense attorney Don West, who’d turned his back on her, “Are you listening?” Because it appeared that no one was.67

  She’d already endured her pretrial deposition, a legal proceeding months before the trial began, where she’d been required to make the five-hour drive from her home in Miami Gardens to Jacksonville, Florida, only to wait and wait as other matters were argued between counsel, such as whether her deposition would be videotaped. (Lawyers are used to delays of hours, days, weeks, or months in legal proceedings. The “hurry up and wait” pace drives witnesses crazy.) Finally she left, telling the attorneys that if they wanted her deposition, they could get a court order. A month later, she made the trip back up to Jacksonville for her deposition. There, she’d been rattled by Don West’s seven hours of questions, and she’d lost her cool with him on a few occasions. This was the man who was defending her friend’s killer, she bore in mind. The experience was unbearable.

  So she had a sense of what to expect at trial—more of the same, only this time, she wouldn’t be in a small conference room with a few lawyers and a videographer. She’d face a packed courtroom, her image broadcast live nationwide.

  With the trial date approaching, two women from Jeantel’s church, knowing that she needed help, purchased some clothing for her that would be appropriate for the solemnity of the Sanford murder trial. Less than a week before the trial was to begin, they reached out to Miami attorney Rod Vereen, telling him, “This young lady needs help.” No one from the prosecutor’s office had contacted her; she was apprehensive and needed someone to guide her through. Vereen had grown up with the women and immediately agreed to jump in. Then a police officer who was to transport Jeantel and protect her during the trial told Vereen the same thing. “It felt like divine intervention,” Vereen told me. She had no funds to pay Vereen, but he assisted her pro bono—without compensation.

  While Vereen took Jeantel under his wing, he wasn’t in the position the prosecutors were. He didn’t have their voluminous files. He wasn’t privy to their trial strategy, or the mountain of pretrial discovery that had been exchanged in the case. What questions did they intend to ask Jeantel? What were the most important areas of questioning? Where were the pitfalls?

  Without this information and short on time, Vereen did what he could. He introduced himself to Jeantel the day before the trial began, and he went to court with her the next day. He told her to answer questions yes or no whenever possible, and to be respectful.

  Vereen bumped into the prosecutors in the elevator on Monday, June 24, 2013, the first day of trial. Optimistically, he told them that they were doing a great job, and that he represented Jeantel. He gave them his business card and asked if there was anything he could do to help them vis-à-vis Jeantel. They accepted his card, shook his hand. “They never called me,” he said.

  In the fall of 2013, I spoke with Jeantel herself.68 What, exactly, did the state attorneys’ office do to ready her to take the stand and provide the best possible testimony for the state?

  She appeared in court Monday morning, the first day of trial, she said. She then spent the entire Monday, she said, sitting in a small room in the courthouse, mostly alone. She knew that at any time a deputy could walk in and tell her it was her turn, and she’d be required to walk into the courtroom and in front of a room full of strangers and television cameras transmitting her words and image to millions and have to talk about the most painful event of her life. She’d previously been identified in court papers only as “Witness 8,” but now she’d have to speak her real name, and the world would be watching her.

  She wasn’t called to testify on Monday after all. On Tuesday morning, June 25, 2013, she returned, fatigued by the tension of the day before. Again, she was told she could be called to testify at any point that day. Each of those days she was given the video recordings of her deposition. Jeantel told me five DVDs were given to her to watch, each several hours long. Much of these “long, boring” recordings consisted of defense attorney West repeating the same questions to her. “I couldn’t pay attention,” she said. She tried hard not to fall asleep watching them, hour after hour. She was not given any instruction as to what to look for on the videos, no analysis of what she’d done right or wrong, no coaching on how to improve from her pretrial performance.

  By Wednesday, Jeantel was worn out by two days of stressful waiting, feeling defeated by her inability to focus on all those video recordings of herself being questioned by West. In total, she told me, she had approximately twenty minutes of real live preparation with the assistant state attorney, Bernie de la Rionda. He told her to just “tell your story, who you are, how you knew Trayvon, stay calm, be respectful.” He didn’t mention particulars of the points to be covered—neither the key points of his direct examination of her, nor anticipated cross-examination by West, were reviewed. “Your testimony should last about an hour,” he advised. An hour, Jeantel thought. Oh, sure.

  Some prosecutors prepare the young, the aged, or the frightened by going to their homes before trial, sitting in their living rooms or taking a walk with them, just visiting and establishing a comfort level. Later, once a working relationship has developed, the lawyer returns and goes over the relevant questions and answers, allowing the witness to speak in whatever manner is comfortable for her. This allows the witness the comfort of knowing the lawyer, so that when she testifies on direct examination she looks into the eyes of a friend, whom she trusts to guide her. And it allows the prosecutor to know what the pitfalls are—where he needs to slow her down, allow her to explain or define terms. And it would not be uncommon, especially in a case of this magnitude, to bring a witness like Jeantel into an empty courtroom before the trial begins, sit her up on the witness stand, and allow her a little practice with speaking clearly into microphones, which can be intimidating to the uninitiated. All of this is not only humane, relaxing the witness, but it’s strategically prudent, as the clarity, flow, and presentation of the witness’s testimony is greatly improved.

  None of this happened for Jeantel. Almost completely unprepared, then, Wednesday afternoon, Jeantel took the stand, the most important fact witness for the state in the highest profile murder case in America in years.

  EVEN ON DIRECT examination69—the easier, friendlier first round of questions propounded to her by the lawyer for her side (the prosecution)—Jeantel fared poorly. In that thirty-
minute examination, Jeantel’s speech was difficult for many to decipher. She was at times inaudible, and her grammar and diction could be hard to interpret. The jurors protested aloud that they could not hear or understand her—many times. In response, Judge Nelson repeatedly told her to slow down, speak clearly, and speak up. Objecting constantly, sometimes every question or two, West successfully broke up any flow of the testimony by making it impossible to get a clear sense of her story. The two microphones in front of Jeantel were fussed with and moved. West complained his view of the witness was obstructed—unfair! He couldn’t see! The judge invited him to move his seat.

  Who could follow this young woman’s testimony with all those interruptions and distractions?

  At the time of trial, Jeantel had an underbite—a bone condition that required surgery. As a result, she had a speech impediment, which caused some of what came across as mumbling and slurred words. The prosecutors’ failure to bring that information out, so the jurors would understand that she had a simple medical problem, was a major oversight. Dental work has nothing to do with credibility.

  In addition, Jeantel spoke an urban teenaged lingo that was an alien tongue to most of the white, suburban, middle-aged jurors. She answered some questions this way:

  “I axed him how the man looked like.”

  “I told him OK, why he keep looking at you for?”

  “I told him to run. He say, naw, he almost by his daddy fiancée house.”

  What no one pointed out was that Jeantel spoke a common vernacular. While one might think that American English is American English and that’s that, in fact hundreds of dialects are analyzed by linguists, reflecting regionalisms and language patterns of various ethnic groups. My grandmother, who grew up in West Virginia, would warn away my suspected misbehavior with, “You better hadn’t!” If she was considering an action, she’d say, “I might could.” We considered this charming, not a sign that she was not trustworthy.