Suspicion Nation Page 9

  With Gary at his side, Dr. Bao claimed that the state intentionally threw the case and would not allow him to introduce medical evidence he wanted to discuss, which would have helped the state’s case. Dr. Bao did not elaborate on what this evidence would have been. Insisting that an attitude of hostility or indifference toward the case permeated the medical examiner’s office, as well as the team of police and prosecutors, Dr. Bao said that behind the scenes, many thought that “Trayvon was a criminal and he was on drugs.” For example, Dr. Bao noted that it was customary for police investigators to attend his autopsies, so they could ask questions and interact with him as he examined the deceased’s remains. No one showed up for Trayvon’s examination. (Through a spokesperson, police investigators said that they were busy trying to identify the remains56 at that time.)

  His testimony was treated as so unimportant, Dr. Bao said, that the prosecutors did not do basic pretrial preparation with him. For example, Dr. Bao’s prior sworn testimony in his pretrial deposition was not sent to him until just a few days before his trial testimony, and then only after Dr. Bao made repeated requests for it, he says. (A spokesperson for the state attorneys’ office57 says that Dr. Bao indicated he did not need to review his prior statement before trial.) And the state attorneys only met with Dr. Bao the day before his trial testimony, on a holiday, July 4, 2013, to go over what he would say—after Dr. Bao insisted that some preparation had to happen. It is not only customary that lawyers meet with witnesses to review their testimony well in advance; for key witnesses and scientific experts—Dr. Bao was both—preparation is essential.

  That lack of planning made for a stunningly poor performance in the state’s presentation of medical evidence. First, Dr. Bao did not remember a single moment from the autopsy he performed on Trayvon, and, worse, he seemed to delight in pointing out that deficiency, with frequent comments like: “I do not have any recall. I do not have any memory of the day of autopsy. I do not remember anything. Zero,”58 he said. (One imagines the prosecutor thinking, Got it. Stop. Please.) To be fair, Dr. Bao performed autopsies daily, sometimes several times a day, week in and week out, as that was his job. Who could possibly recall them all? At the time he analyzed Trayvon’s remains, it was just another day in the coroner’s office, and his examination was not particularly memorable. In this case and in every case, however, Dr. Bao took notes to record his findings and relied upon those notes in the trial.

  Still, a more polished Q and A on this point would have been:

  PROSECUTOR: Do you have an independent recollection of this autopsy, which you conducted sixteen months ago, Dr. Bao?

  DR. BAO: I do not.

  PROSECUTOR: Is it customary for you to rely upon your notes, then?

  DR. BAO: Yes.

  PROSECUTOR: Thank you, Dr. Bao. Please feel free to do so when necessary in answering my questions.

  Appearing entirely unfamiliar with court rules, Dr. Bao wanted to simply read his notes aloud on the stand, rather than answer the prosecution’s questions—a sign of inexperience, and, again, lack of preparation.

  And those were just style points. On substance, Dr. Bao had some entirely new theories to offer on the stand—scientific opinions that surprised the prosecutors, the defense, and everyone else in the courtroom. He went off script. Sure, he’d come to some conclusions eight months earlier when he testified under oath in his deposition, but at trial, the critical moment in the case, he changed his mind. At his November 2012 deposition, Dr. Bao had said that Trayvon could have survived the gunshot wound to his heart for one to three minutes. Now, based on a different case he’d been involved with three weeks before the trial, Dr. Bao had a new opinion—that Trayvon could have lived from one to ten minutes. Caught flat footed, de la Rionda tried to limit the impact of this change, and Dr. Bao, defensively, repeatedly explained that facts don’t change, but opinions can, and that there was nothing wrong with an expert changing his opinions. In a heated exchange with de la Rionda, Dr. Bao blurted out that only “mentally retarded” people never change their opinion, and that as an expert he was entitled to change his opinion every day if he liked.

  Well, theoretically, yes, in the lab or classroom, but Dr. Bao seemed painfully unaware that changing one’s testimony damaged one’s credibility at trial, since the facts had remained the same—only Dr. Bao’s interpretation as to what they meant had changed. Next week, might he change his mind again? If so, how could the jury possibly rely on his testimony and convict a man of murder?

  And springing this on the state at trial left the prosecutors gobsmacked and scrambling to improvise with these new opinions from their own expert. Was Dr. Bao actively trying to stick it to the state attorneys?

  Outside the presence of the jury, the court conducted a hearing on this surprise change of heart by Dr. Bao. The issue was whether the state knew about Dr. Bao’s new positions, because if so, they’d have been required under the discovery rules to disclose them to the defense, so that they too could be prepared. De la Rionda showed the judge his notes, essentially saying, hey, we didn’t know about this, don’t blame us—as if the state’s lack of preparation was something to be proud of. The prosecution was off the hook on the alleged discovery violation—but their much bigger problem, failing to prepare one of their most critical witnesses, festered.

  The number of minutes that Trayvon may have remained alive after the shooting was, ultimately, not all that significant in the case because the most important facts were those leading up to the gunshot, not what happened afterward. Whether Trayvon lived for one minute, three minutes, or ten minutes more, there was no question that Zimmerman’s bullet to the heart took the teenager’s life. The only minor relevance of this time period is that Zimmerman had said that after he shot Trayvon, he’d turned Trayvon onto his stomach and spread his arms to prevent him from getting to his imagined weapon, and left him in that position. Yet when the first responders arrived, Trayvon’s arms were found tucked under him, probably in a heartbreaking attempt to press on the painful bullet wound as he lay dying. This position is inconsistent with Zimmerman’s statement of how he left his shooting victim, unless in the minutes after Zimmerman got off Travyon, Trayvon was still alive and able to move.

  The prosecution wanted to argue that Zimmerman’s statement that he’d left Trayvon with his arms spread was another lie, because Trayvon’s arms were found under him. But this knee-jerk approach to calling any inconsistency a lie missed the point: Why would Zimmerman lie about this? How would it help his story? It wouldn’t. So focusing on Dr. Bao’s estimate of the number of minutes that Trayvon survived was a distraction that did not advance their case and undermined their own forensic pathologist’s testimony and credibility.

  More significant was the testimony Dr. Bao now wanted to give about the trace amounts of marijuana found in Trayvon’s system—his second changed opinion. At his deposition, Dr. Bao had said that Trayvon would have been unaffected by the small amounts of THC, the active ingredient in marijuana, found in his body. Since then, he said he had done additional research into the toxicology. As a result, Dr. Bao wanted to testify at trial that the presence of THC in Trayvon Martin’s system could have decreased aggression and made him more relaxed—the commonly understood mellowing effect of marijuana.

  Again due to a lack of communication between the state and Dr. Bao prior to his testimony, the prosecution was caught off guard by this new position. After a hearing outside the jury’s presence, Judge Nelson reversed an earlier ruling and held that given Dr. Bao’s new opinion, she would have to allow testimony about THC in Trayvon’s system. Ultimately the defense, after winning that ruling, did an about-face and decided against letting the jury know about the marijuana after all. Of course they did. Because while they could have introduced evidence that in a tiny number of cases THC has the opposite effect, the science is clear that marijuana is overwhelmingly a relaxant. If the jury knew that Trayvon had THC in his system, they might conclude he was less likely to have been
the homicidal, enraged attacker Zimmerman described. (Zimmerman himself was never given an alcohol or drug test after the shooting because the police did not have probable cause to believe he was under the influence. His medical records revealed that he had been prescribed the stimulant Adderall, commonly used to treat attention deficit disorder, and Temazepam, a drug used for insomnia and anxiety, but the judge did not allow this information to reach the jury.)

  The prosecution too stayed away from the marijuana evidence, perhaps concerned about the image of Trayvon Martin as a pot-smoking thug, an unfounded, ugly image that had widely circulated online. But in today’s America, 35 percent of us have tried cannabis, and half favor legalization,59 according to Gallup. A few months before the trial began, a solid 70 percent of Floridians60 favored legalizing medical marijuana in the state. Most people understand that THC has a calming effect, rendering its users far more likely to be lazy than violent.

  Nevertheless, like race, the prosecution did not want to touch this issue. And because the amounts of THC in Trayvon’s system were so minute—he could have ingested it days or even weeks earlier—testimony on its effects on him on the night of February 26, 2012, would have been highly speculative.

  And so Dr. Bao did not testify about his view that marijuana would have reduced any aggressiveness on Trayvon Martin’s part because neither side wanted to bring in that testimony. Nor did he tell the jury any other medical theories he had about the shooting because he was not asked, and he’d already been warned by the judge not to volunteer information.

  I reached Dr. Bao three months after the trial and asked him specifically what additional scientific theories he’d wanted to explain to the jury. First, he said that while everyone understood that the bullet to the heart killed Trayvon, no one had talked about his lung injuries, which had some significance. Two bullet fragments, he said, punctured Trayvon’s lung, as he had noted in his autopsy report.61 Those fragments caused hemorrhaging and a condition called pneumothorax, which is air in the pleural space that separates the lung from the chest wall and which interferes with normal breathing. “His lung would have been squeezed like a balloon and would not have been able to expand,” Dr. Bao said, “therefore, Trayvon would not have been able to speak, not at all.” Zimmerman had claimed that Trayvon said, “You got me,” immediately upon being shot, another gangster-movie-sounding line. The medical evidence shows that to be an impossibility, Dr. Bao said.

  Dr. Bao tried to tell the prosecutors this in their very brief, perfunctory preparation of him, he says, but they brushed it off. “They didn’t want to hear it,” he says. They didn’t want to hear about medical evidence that contradicted Zimmerman’s story? “I tried to tell them, but they didn’t listen.”

  A spokesperson for the prosecutor’s office62 called Dr. Bao’s claims about their alleged shortcomings in the case “unconscionable,” without specifically responding to the allegations that the state’s lawyers had been lax in preparing him to testify.

  It was clear by the end of the trial that the prosecutors had had it with their own medical expert. In closing argument, John Guy distanced himself from his forensic pathologist, asking the jury: “If you don’t like … Shiping Bao, ask yourself, who produced this trial? Who made up the witness list?” Yes, Zimmerman’s shooting caused the trial to happen, but, hey, the prosecution makes up its own witness list, the state of Florida chooses its own medical examiners, and the state attorneys’ office chooses to prepare its witnesses, or to let them flounder on their own.

  The only reference to his own expert was a negative one, validating the jury’s presumed dislike for Dr. Bao and offering no defense of his own witness.

  IN CONTRAST TO Dr. Bao, far and away the defense’s best witness was Dr. Vincent DiMaio, an amiable “hired gun” medical examiner who examined the scientific and medical evidence in the case and testified in a clear, compelling manner that Zimmerman’s story was consistent with all the forensic evidence in the case. His testimony focused on the gunshot residue (also called stippling or powder tattooing), which are tiny particles emitted from a fired gun, which can be measured in close-range shootings to determine the distance between the gunman and the victim. Dr. DiMaio said that here, the gunshot residue around the bullet wound on Trayvon’s chest established that the shot had been fired two to four inches from Trayvon’s skin, and that the gunshot residue around the bullet hole in Trayvon’s outer sweatshirt showed that Zimmerman’s gun had been fired while pressed directly against it. Thus, a gap of a few inches existed between Trayvon’s hoodie and his skin at the time he was shot. And therefore, Dr. DiMaio testified emphatically, at the moment he was shot, Trayvon was crouched above Zimmerman, with gravity pulling Trayvon’s shirt away from his body, just in the way Zimmerman claimed it happened.

  A perfect scientific fit with Zimmerman’s selfdefense story! At least, that’s how this evidence went to the jury. Because while this testimony could have easily been undermined and countered on cross-examination, the state punted. And while the prosecution knew about this witness in advance, it failed to secure its own expert to respond to Dr. DiMaio.

  The prosecution’s rebuttal case is its chance to bring forth one of its witnesses already called (like Dr. Bao) or a new witness to counter the defense’s best witnesses. The state called no one to answer Dr. DiMaio. Because of these two choices—a very soft cross-examination and not calling anyone to present the other side—Dr. DiMaio’s strong presentation went to the jury unchallenged.

  Jurors, we know now, saw Dr. DiMaio’s testimony as a breath of fresh air. Maddy praised him, appreciating that “he made connections on things that I was confused about,” precisely the role of a good expert witness. Even before he took the stand, jurors heard his name, as Dr. Bao conceded on cross-examination that he had reviewed Dr. DiMaio’s book on gunshot wounds, thereby strengthening Dr. DiMaio’s credibility as the preeminent expert in his field. In marked contrast to the prosecution’s presentation of its forensic expert, there was no tension between the defense expert and the attorneys for his side. He’d obviously been carefully prepared, so the questions posed to him and his answers on direct examination flowed smoothly. He smiled, sat back in his chair, and explained medical concepts in plain English for the jurors like a wise, kindly grandfather. His primary point—that the two-to four-inch gap between Trayvon’s shirt and his skin at the time of the shooting was consistent with Zimmerman’s story that Trayvon was crouched over Zimmerman—was communicated clearly and unambiguously—and consistently with his prior deposition testimony. A home run for the defense.

  The state needed to come back aggressively to undermine Dr. DiMaio. By this point in the trial, jurors understood that this was a murder trial, not a tea party. The attorneys’ job is to ask impertinent questions on cross-examination, to see whether the witness’s story holds up. This is especially true for expert witnesses. While trial lawyers can turn jurors off with overly tough questioning of regular folks on the stand, for whom we may have sympathy as they were thrust unwillingly into a high-profile case, experts like Dr. DiMaio are highly educated and richly compensated to be there ($400 an hour in this case, he told the jury), and as forensic professionals who signed up for this line of work, they should be able to withstand the most aggressive cross-examinations allowable in criminal trials. Withering cross-examination of paid experts is fair game.

  Instead, prosecutor Bernie de la Rionda chose to bolster Dr. DiMaio’s credibility and get chummy with him. Rather than approach him with the outraged attitude of “I’m here to lock up a murderer and your bogus science seeks to free him,” de la Rionda seemed to want to be Dr. DiMaio’s new best friend. Beginning with a joke about how they both have loud voices and they are both balding, de la Rionda seemed to be bonding with the witness. Later in the cross-examination, de la Rionda joked that they are also both hard of hearing (a third attribute they shared!). Dr. DiMaio suggested they discuss which ear to see how close the similarity was. The jury had to notice, what a l
ikeable guy this Dr. DiMaio is! Even the prosecutor is charmed by him.

  Equally disturbing, on cross-examination of Dr. DiMaio,63 the state chose to repeatedly reinforce the expert’s credibility by reminding the jury that Dr. DiMaio was “head of the medical examiner’s office in Bexar County, Texas,” for twenty-five years. This experience dwarfed Dr. Bao’s two years in Volusia County, where he was not the head of the office, but merely an associate medical examiner. And Dr. DiMaio was the “head of the ME’s office in that beautiful city of San Antonio,” de la Rionda mused. Dr. DiMaio agreed that his city’s famed River Walk, in particular, was lovely.

  Is this a murder trial, or a first date? Is the prosecutor there to avenge the unlawful taking of an innocent teenager’s life, or to schmooze with a celebrity?

  “You also mentioned that you testified all over the world,” de la Rionda continued, further underscoring Dr. DiMaio’s authority. Well, in some cities around the world, Dr. DiMaio responded with faux modesty.

  What a waste of time. Instead, the prosecutor could have pointed out that Dr. DiMaio had spoken about the case on television—a tactic the defense had used to undermine a number of the prosecution witnesses, who had gone on TV talk shows about the case. While there is nothing illegal or immoral about witnesses submitting to media interviews during high-profile trials, jurors often feel those who do so lack credibility, as they may have been simply seeking their “fifteen minutes of fame.” The prosecution missed an opportunity to tell the jury that Dr. DiMaio had done his own media interview, just like some of their witnesses.