Suspicion Nation Read online

  But wait—if the gun was concealed, how could Trayvon have seen it? Because, remember, the most critical moment in Zimmerman’s narrative was deep into Phase 2, when Trayvon supposedly saw the gun and reached for it, allegedly saying, “You’re gonna die tonight, motherfucker.” If he didn’t see the gun, he didn’t take the actions that flowed from it—the alleged reaching, the alleged threat to kill.

  There’s no question that Zimmerman wore his gun hidden inside his pants. The first police officer on the scene, Tim Smith, noted in his police report42 that “Located on the inside of Zimmerman’s waistband, I removed a black KelTec 9mm PF-9 semiauto handgun and holster.” (My emphasis.)

  But a waistband on any pair of pants goes all the way around, front to back to front again. Where exactly on his waistband was Zimmerman’s pistol holstered?

  This is how a gun is often holstered in an inside-waistband holster.

  But is that how Zimmerman wore his? The day after the shooting, police walked with Zimmerman through the Retreat at Twin Lakes with a videographer recording Zimmerman’s play-by-play as to what had happened the night before. On that video, Zimmerman demonstrates that the gun was holstered behind him, over his buttocks, in this very position. Thus all but the grip (handle) of the gun would have been covered by the seat of his pants. That grip would have extended diagonally to Zimmerman’s center back, as in the photo above. While the grip would not be covered by his pants, Zimmerman was also wearing a T-shirt and a jacket during the incident, which would have covered the gun if he was in virtually any position other than standing on his head.

  Not just once, but three times, in three different ways, on that video, plain as day, Zimmerman showed the police that his gun was concealed inside his pants, and on his backside. He patted his rear end to show where his gun was. In demonstrating how Trayvon supposedly reached for the gun, he reaches across his chest toward his backside. Finally, he reached back behind him one more time to reenact pulling the gun and shooting it.

  Zimmerman was not asked to lie supine in his reenactment, a significant lapse in the police investigation. Less than twenty-four hours before, he had killed an unarmed teenager. Did they not want to subject him to the inconvenience of showing exactly how the shooting happened?

  Putting together just these two simple, irrefutable pieces of evidence—that Zimmerman’s gun was holstered inside his pants, and that it was located behind him—proves the falsity of Zimmerman’s story. If Trayvon truly had Zimmerman down on his back, he could not have seen the gun, because Zimmerman would have been lying on top of it. Add in a few other facts agreed to by the neighborhood witnesses: it was a very dark night, and it was raining. Many witnesses talked about how visibility was extremely poor in that area, and that unless one stood directly under a townhouse porch light, there was really no light at all. Add that the altercation ended on the grass, which would also obscure even a sideways glance at an object affixed to someone’s backside as he was lying down on the ground.

  And yet Trayvon, somehow, on that wet, black, low-visibility night, saw through the grassy ground cover, through the bulk of Zimmerman’s body, through Zimmerman’s shirt, and through his jacket to a matte black gun concealed in a matte black holster clipped inside Zimmerman’s waistband.

  Can anyone possibly believe this story?

  And if Zimmerman had been punched in the face and fallen backward, as he claims, he would have landed hard onto his back, on that solid metal object holstered inside his pants—ow, sounds painful, right?—and yet there was no evidence at trial that he had a bruise, an abrasion, a cut, or even redness from the gun pressing into his backside after he supposedly fell on it. Every nick and scrape Zimmerman experienced was carefully catalogued and reviewed at the trial. Nothing on his back.

  Somehow, during the presentation of the evidence at Zimmerman’s trial, the prosecution was unaware of the vitally important fact that Zimmerman’s gun was holstered on his backside. At various points, both the prosecution and the defense attorneys demonstrated the position of the gun by patting the front of their waistbands, as in the photo below, giving the jury the false impression that that’s where Zimmerman carried his weapon, in that far-more visible location. No one in the courtroom corrected that misperception. The state was in possession of Zimmerman’s videotaped demonstration for over a year, as well as Zimmerman’s gun, holster, and all the information about the dark, rainy night, and the grass, which came from their own witnesses.

  But disturbingly, they failed to put the evidence together, or to use it. With their own neighborhood witnesses, the prosecution could have emphasized how very dark that suburban neighborhood gets at night, connecting it to this issue. They could have asked questions like this:

  PROSECUTION: How dark was it that night?

  RESIDENT: Oh, very dark.

  PROSECUTION: Can you describe it?

  RESIDENT: Once I step off my porch, away from my porch light, I need a flashlight to walk around.

  PROSECUTION: And how about the rain? Did that make it easier or harder to see things?

  RESIDENT (laughing): Well of course, harder. It’s tough to see through the rain, especially at night.

  PROSECUTION (holding up the holster): Would you have been able to see this?

  RESIDENT: On that night? No.

  PROSECUTION (putting the holster inside his pants, behind him, then lying down on the floor): How about like this? Would you have been able to see it?

  RESIDENT: You’ve got to be kidding. No way.

  PROSECUTION: How about the grass? Would it be easy to see a small black item like this with the grass in the area all around me?

  RESIDENT: The grass would make it harder to see, I’d say.

  Oh sure, the defense might start objecting. But the prosecution would have made its point. Lest you think I am being overly dramatic suggesting that the prosecution put the holster in his pants and lie on the courtroom floor (I’d add the gun too, if the court would let me), attorneys for both sides were down on that very floor, or using their own bodies to demonstrate their version of events, at many points throughout the trial. But just as the police never required Zimmerman to put all the parts of his story together and truly reenact it, so too the state’s attorneys never synthesized the evidence before them, never demonstrated to the jury that the most important life-or-death moment of Zimmerman’s story could not be true.

  And if the point could not be made through a lay (nonexpert) witness like a neighbor, it certainly could have been made later on in the trial, on cross-examination of the defense’s expert on fighting, Dennis Root, who was called to say that Zimmerman’s story of the altercation all made sense to him and was consistent with the evidence he’d reviewed.

  With expert witnesses, attorneys are given wider latitude on cross-examination. Expert witnesses are professionals who sign up to testify at trials, and they are paid for their time doing so. Everyone understands that attorneys will challenge their credentials, their methodology, their opinions, and their findings, from every angle possible, aggressively (though respectfully).

  The prosecution missed its opportunity to push back at Root with questions like this:

  PROSECUTOR: Your testimony is that Mr. Zimmerman’s account of his altercation with Trayvon is consistent with normal fighting tactics as you know them?

  ROOT: Based on my experience, yes.

  PROSECUTOR: Would you be willing to step down off the witness stand, Mr. Root?

  ROOT: Certainly. (Stands in the well of the courtroom, before the jury.)

  PROSECUTOR: Here is the gun Mr. Zimmerman used that night. Don’t worry, it’s been secured by the officers and it’s not loaded. Would you hold it please?

  ROOT: Yes. (Holds gun.)

  PROSECUTOR: Here is the holster that Zimmerman was wearing that night. Would you please put the defendant’s gun in the holster?

  (Root does so. Starts to get anxious.)

  PROSECUTOR: Incidentally, are you familiar with this gun and holster
?

  ROOT: Not really. I’m an expert on fighting tactics, not guns and holsters.

  PROSECUTOR: Well, according to the defendant, this was a fight that ended with a shooting. Isn’t that correct?

  ROOT: Yes, it is.

  PROSECUTOR: And you were called upon to analyze the entire incident, weren’t you?

  ROOT: I was.

  PROSECUTOR: But in doing so, you didn’t look at the actual gun and holster, or copies of them?

  ROOT: Just in the photographs.

  PROSECUTOR: Now I am putting on the holster the way Mr. Zimmerman wore it that night. You’ve seen the reenactment video, where the defendant partially reenacted the shooting, haven’t you?

  ROOT: Yes, I watched the video.

  PROSECUTOR: But he didn’t really reenact the final moments just before he killed Trayvon, did he?

  ROOT: Well, he demonstrated as best he could.

  PROSECUTOR: He demonstrated from a standing position, didn’t he?

  ROOT: Yes.

  PROSECUTOR: But in fact, he says he and Trayvon were both on the ground at the time of the shooting, right?

  ROOT: He does say that.

  PROSECUTOR: Any reason why he couldn’t get down on the ground and show the police what he says happened?

  ROOT: Not that I know of.

  PROSECUTOR: On that video, the defendant made it clear that the gun was concealed and holstered behind him, didn’t he?

  ROOT: Uh … if you say so.

  PROSECUTOR: You didn’t notice that?

  ROOT: I don’t remember that specifically.

  PROSECUTOR: Oh, well then let’s take a look. (Shows thirty-second clip where Zimmerman indicates three times that the gun was holstered behind him.)

  ROOT: Oh. OK. Yes, I see that.

  (Prosecutor gives jury a meaningful look.)

  PROSECUTOR: So let’s put it all together and do a real reenactment for this jury right now, OK?

  ROOT: If you say so.

  PROSECUTOR: (securing the gun in the holster, putting the holster inside his pants, on his backside, jacket over the gun): I’m the defendant, and my firearm is concealed and secured by the holster, behind me. That’s how Mr. Zimmerman had it, right?

  ROOT: I believe that’s right.

  PROSECUTOR: Well, we all just watched the reenactment video to refresh our recollections. Do you need to see it again, Mr. Root?

  ROOT: No, I don’t need to see it again.

  PROSECUTOR: All righty. Now I’m going to lie down, and you straddle me, the way Mr. Zimmerman says Trayvon Martin did.

  DEFENSE: Objection!

  JUDGE: He’s a fighting expert, and this is his area of testimony and expertise. I’ll allow it.

  PROSECUTOR (now supine): Do you remember how the defendant said Trayvon Martin was straddling him?

  ROOT: Knees to armpits?

  PROSECUTOR: Exactly. Go ahead.

  At this point the jury would be rapt. They’d all be leaning forward in their seats. What an exciting part of the trial was now playing out before them! Two grown men, one on top of the other, recreating the final, dramatic moments of Trayvon Martin’s life. Now that the prosecutor pointed it out, this had not been demonstrated accurately on that Zimmerman police video! Where was the prosecution going with this? The anticipation would be high. This demonstration would not require understanding any confusing legal concepts, nor would it make them sit through hours of boring testimony before the lawyer got to the point, both of which happened far too often at this trial (and happen at most trials). If a picture is worth a thousand words, a live demonstration is worth a million.

  And what would they see? That even in the bright, dry courtroom, Zimmerman’s gun was not visible. Not to the defense expert atop the prosecutor, not to the jurors, not to anyone.

  Bringing in a patch of fake grass the same length as the grass at the crime scene would have been helpful too, to show its obscuring effect. Ever lose an object in grass? On a dark night? Most of us would not even start looking until the next morning. Prosecutors could have even gone so far as to dim or turn off the lights in the courtroom to remind the jurors of the darkness on the night of the shooting.

  The prosecutor could then put it all together, right before the jury’s eyes:

  PROSECUTOR (down on the floor, on his back): Now, you remember how the defendant said that Trayvon Martin saw and reached for the gun?

  ROOT: I do remember that part of his story.

  PROSECUTOR: Can you see the gun right now, Mr. Root?

  ROOT: No, but …

  PROSECUTOR: But what? Do I not have the gun and holster on my person the way the defendant indicated? Am I not in the position he said he was in just before he shot Trayvon Martin?

  ROOT: You are. But a fight is dynamic. They were moving around. Maybe Trayvon saw the gun at a different point in the fight.

  PROSECUTOR: You’ve reviewed all of the defendant’s stories as to what happened?

  ROOT: I have.

  PROSECUTOR: And in which one of those stories did he say that Trayvon Martin saw the gun at some other moment that night?

  ROOT: I don’t know.

  PROSECUTOR: Would you like to review your notes?

  ROOT: Yes, I would. (Root returns to the witness stand. Minutes tick by silently as he flips through his pages of notes. The prosecutor knows there is no version of Zimmerman’s story where he says Trayvon saw the gun while the two were upright, or in any other position.)

  Finally …

  ROOT: I can’t find that. Perhaps Zimmerman was mistaken when he said that Trayvon saw the gun at that point in the fight.

  PROSECUTOR: Mistaken. Mistaken? Let me give you some other possibilities. The defendant was exaggerating when he said Trayvon saw and reached for the gun just before the defendant shot and killed him?

  ROOT: That is possible.

  PROSECUTOR: The defendant was lying when he said Trayvon saw and reached for the gun just before he shot him?

  ROOT (squirming in his seat): That is possible.

  Had the state attorneys put this all together before the trial, as they should have, they could have called their own fighting expert to make the point clearly for them. They failed to do so. But even if they didn’t figure this out until the trial was already underway, they could have made the point effectively during direct examination of their own lay witnesses, or during cross-examination of the defense expert, Dennis Root. The fact that none of this happened leads inescapably to one conclusion: no one in the state attorneys’ office noticed the best evidence, the “smoking gun” evidence, that was right under their noses.

  If the prosecution had done its job and hit hard on this issue, one wonders what the defense could have come up with in response. Maybe Zimmerman was wrong about Trayvon seeing and reaching for the gun. The fight all happened so quickly, and the two men were moving around a lot. That would have been a devastating admission, because, remember, to prevail on his selfdefense theory, Zimmerman was required to show that he was in reasonable fear of imminent great bodily injury or death. Imminent. Meaning, he was about to die, in a matter of moments. He could not legally take out his gun and end the fight by killing Trayvon Martin without immediate impending life-threatening (or at least, great-bodily-injury-threatening) harm.

  Maybe Zimmerman was wrong? He cannot be wrong about this and hang on to his credibility, his reasonableness—that all-important selfdefense factor. If Zimmerman was wrong, he was lying (and now jurors have no basis to believe he killed in selfdefense) or he was exaggerating (which is really just another word for lying, and at best indicates he panicked, which means he was not behaving reasonably, as the law requires.)

  If Trayvon was not about to take Zimmerman’s life, the shooting was not justified. If the shooting was not justified, Zimmerman is guilty of either manslaughter or murder.

  But he was pounding my head on the concrete too! Zimmerman said in several of his statements. Defense attorney O’Mara even hauled in a heavy chunk of concrete in
his closing argument (a nice move on his part—the defense understood the power of visual aids) to show the jury that the sidewalk could be a deadly weapon. And indeed it could. If the incident ended on the sidewalk. Which it didn’t. Trayvon’s body was found on wet grass, a substantial distance from any concrete. And Zimmerman said he didn’t move Trayvon’s body—that he merely slid out from under it. Thus we can conclude the altercation ended there, on soft, wet grass. Unless Zimmerman’s neck extended eight or ten feet at a time like a Pez dispenser, his statement that Trayvon was banging his head on the concrete was false. Exaggerated. A lie. (Zimmerman’s attorney conceded in closing argument that given Zimmerman’s minor injuries, his head was probably not banged dozens of times on the concrete, as Zimmerman told police. This was a major concession that the prosecution should have capitalized upon, but they failed to. It was an admission to another exaggeration, another example of panicked overreaction—of Zimmerman not meeting his legal obligation of reasonableness.)

  The physical evidence disproved the core of Zimmerman’s selfdefense story. Without Zimmerman’s statements that Trayvon saw and reached for the gun (enhanced by the gangster-movie-sounding threat he attributed to Trayvon while Trayvon was supposedly reaching for Zimmerman’s not-visible gun: “You’re gonna die tonight, motherfucker”) and his allegation that Trayvon was pounding his head on concrete too far away to be reached, Zimmerman had nothing left to meet the legal requirement that he reasonably believed he was in imminent risk of great bodily injury or death.

  All this the prosecution failed to mention in opening statements, or on direct or cross-examination of any witness day after day, week after week, for three weeks, missing one opportunity after another to drive this essential point home to the jury. At the very end of the case, after we’d been hammering this point on television all week, miraculously, in closing argument, prosecutor de la Rionda for the first time mentioned his brand-new observation that Zimmerman holstered his gun behind him. Mentioned, only briefly. He didn’t show the jurors the portion of the video where Zimmerman himself pats his backside to indicate his gun’s placement. He didn’t point out that Zimmerman had failed to truly reenact the final moments of the altercation. Was it because Zimmerman knew he’d be found out if he actually lay down on the ground with his gun behind him? The prosecutor didn’t put the gun and holster on himself, or on the dummy, and lie down to show the invisibility of the pistol in that position. He didn’t connect any of the evidence up with the three important elements of the law of selfdefense. He did ask the question, in showing a clip of another video, how Trayvon could have seen the gun. But it wasn’t a question, by the end of trial. The point required an aggressive, declarative statement from the man asking the jury to find Zimmerman guilty of murder, that Zimmerman’s story was now proven to be impossible, a lie, and therefore his selfdefense claim was disproved, beyond a reasonable doubt. It required a prosecutor’s fire-in-the-belly belief in his own case. The prosecutor should have explained that Trayvon was killed intentionally, without any legal justification; that Zimmerman came up with a selfdefense story, a story that may have been believable at first, but once all the evidence was put together, could now be seen as a fabrication. Selfdefense, then, would no longer be a part of this case. It would be out. And without it, what’s left is an intentional shooting without justification—with manslaughter or murder the only remaining options.