07.10.13

George Zimmerman Won’t Testify, His Counsel Butts Heads With Judge

George Zimmerman won’t testify in his own defense—and it took a screaming match between one of his lawyers and Judge Nelson for him to finally make the decision. Jacqui Goddard reports from a testy day at court.

A bemused George Zimmerman found himself in the midst of another firestorm Wednesday as the judge presiding over his murder trial engaged in a fierce showdown with his counsel over whether the defendant would testify about his fatal shooting of Trayvon Martin.

In the testiest of testy exchanges, which have been peppered through the nearly three-week trial in Sanford, Florida, amid a series of pro-state rulings by Judge Debra Nelson, spectators were left gulping as defense co-counsel Don West repeatedly challenged Nelson’s decision to press Zimmerman for a clear answer. The judge repeatedly slapped him down, her voice gathering volume every time.

“The court is entitled to ask Mr. Zimmerman about his determination as to whether he wants to testify,” Nelson insisted tersely after West objected to her line of questioning.

She looked back at Zimmerman: “How long do you think you need before you make that decision?” she inquired again, as the defendant—who had a minute earlier been made to raise his hand and swear under oath that any decision whether to testify would be his—turned to his counsel for help.

“I object to the court inquiring of Zimmerman about his intention to testify,” West whimpered for a second time.

“And I have O-VER-RULED” Judge Nelson spat back—several times—as the objections kept coming.

The fiery back and forth came a day after Judge Nelson staged a walkout on West while he was still mid-flow airing a protest about her keeping him in court late (and presumably after ice-cream-shop closing time.)

Video screenshot

After a recess, Zimmerman told the court that he had decided not to testify.

“The more the fight takes place, the more fatigued you become… you’re fighting on a diminishing return.”

“Your honor, we’ve been working very long hours,” West complained on Tuesday night as the court finally recessed at 9.57 p.m, nearly two hours after the building was briefly plunged into darkness by the automatic timer that turns off the lights after hours.

“So have I,” Judge Nelson reminded West firmly, gathering up her paperwork and walking out, with the exhausted lawyer still speaking. “I don’t think I can physically keep up this case much longer ... weekend depositions, and at night,” he called after her, as she disappeared off the bench and out the door.

West, who has admitted to marking the end of his working days with a celebratory ice-cream cone from a local store—a tradition that caused a separate meltdown during the first week of the trial after one of his daughters posted a photograph with an obliquely worded caption that prosecutors complained disrespected a witness—clenched his jaw and gave up.

Zimmerman has pleaded not guilty to murder. Closing arguments are expected to be over on Friday, meaning that the 29-year-old neighborhood-watch volunteer, who shot dead the unarmed Martin, 17, thinking he looked “suspicious,” could learn his fate as soon as this weekend.

In testimony Wednesday, Dennis Root, a former police officer and expert witness on the use of force, testified that in terms of physical prowess, Zimmerman would have been the clear underdog in the fight with Martin that preceded the February 26, 2012, shooting.

“Mr. Martin was a physically active and capable person. Mr. Zimmerman is an individual who’s by no stretch of the imagination an athlete,” Root said, adding that compared with his victim, the defendant would have found himself “lacking” on the physical front.

Zimmerman, he said, had few options left after Martin allegedly pinned him down and slammed his head on the pavement—a scenario that Root said was borne out by his examination of the evidence.

“If you haven’t been able to win the fight in 30 seconds, change tactics ... when you find yourself in a physical altercation you only have so much gas in the tank ... the more the fight takes place, the more fatigued you become ... you’re fighting on a diminishing return,” he said.

As professional images go, what followed in the courtroom was probably not something for which Mark O’Mara would most like to be remembered. 

Hitching up his pant legs and straddling a life-size human mannequin, Zimmerman’s lead defense counsel got down and dirty on the courtroom floor and proceeded to demonstrate for jurors the “ground and pound” move that they have been told Martin exerted on the accused.

Coming a day after he encouraged one of his witnesses, gym owner and mixed martial arts trainer Adam Pollack, to “step down from the stand to give me an example of a mounted position,” prostrating himself on the floor and asking Pollack, “Where do you want me?” the episode made for an awkward role play, leaving court observers snickering and biting their lips in the midst of an otherwise tragic plot.

Earlier in the day, prosecutor John Guy—described by one public observer in the courtroom on the trial’s opening day as “the supermodel of attorneys”—had also hopped on the mannequin for a similar demonstration in front of the all-female jury.

Zimmerman will not testify in the case. The prosecution’s rebuttal could continue into tomorrow.

The defense rested its case Wednesday without presenting evidence from a forensics expert, as it had indicated it may, about trace amounts of THC, the active ingredient in marijuana, having been found in Martin’s system during autopsy.

O'Mara could make more of the issue during his closing argument, during which he will also show the jury an animated video re-creation of the struggle between Zimmerman and Martin and subsequent shooting, as perceived by the defense based on multiple witness testimonies. Judge Nelson has ruled that the video cannot be presented in evidence but may be used as a “demonstrative exhibit” to aid closing arguments.

The video was made using 3-D “motion capture technology” more commonly used in Hollywood.

“They say they use this for the movies. Great, this is a murder trial. It isn’t Casablanca. It isn’t Iron Man,” protested prosecutor Richard Mantei during legal arguments Tuesday.

Speaking to reporters in the courthouse after proceedings closed Wednesday, O'Mara revealed that Zimmerman had wanted to take the witness stand."For a year and a half he's been in hiding because of this onslaught of prosecution and now we're done and a big part of him wanted to get in front of the jury and say 'This is my story, this is what I have done and this is why I did it.' So it was a very difficult decision for George to make. With the evidence the way it is, I think we have a very very good chance with the jury right now and with the evidence as presented," he said.

Not testifying was "a very difficult decision for George" and was taken on his legal team's advice. "You give the scalpel to the doctors for a reason," said O'Mara. "I think he trusted us."The defense case constructed its case "in a way that protected George zealously but also protected the memory of a 17-year-old son of two people who were in court every day," he said, referring to Trayvon Martin's father, Tracy, and mother, Sybrina Fulton.

O'Mara will argue today against the inclusion of three lesser charges that the prosecution has proposed for the jury to consider as alternatives to second-degree murder. The argument of self-defense to one is an argument of self-defense to all," O'Mara explained.

"What happened out there isn't a crime. There shouldn’t be a second degree murder charge and there shouldn’t be any lessers."

O’Mara added that Zimmerman is “very worried” about the verdict despite his counsel’s confidence. “We still have a case where the state of Florida is trying to put him behind bars for the rest of his life. That’s a very scary position to be in,” he said.

Even if Zimmerman is acquitted, concerns remain. "I think he’s very worried about his personal safety going forward. The same people who created fear and hatred leading up to this trial probably aren’t going to accept an acquittal." 

Co-counsel Don West has also received threats to his family’s safety, Mr O’Mara added. "We are going to be cautious into the future. I think there are some people who are going to be angry with an acquittal," he said.

"We have been very cautious through this whole things and there have been ebbs and flows in people’s animosities."