Author Topic: Defense Opening Statement Expectations  (Read 2677 times)

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Offline TalkLeft

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Defense Opening Statement Expectations
« on: June 23, 2013, 09:27:37 PM »
Don West is expected to deliver the opening statement for the defense. Here's a thread to talk about what you expect each side will say and won't say and what you think they should and should not say.

My thoughts: An opening should utilize principles of story-telling. For a self-defense case, the story should include:

  •   the idea of actual innocence
  • a likeable human being much like the members of the jury or someone they love who sits here unjustly accused, and
  • whose conviction would be a terrible wrong

Essential ingredients:

  • Telling the story from a positive point of view
  • Accepting the “facts beyond change”
  • Presenting a consistent and cohesive  alternative to the prosecution theory
  • Taking advantage of anticipated jury instructions

The opening should use vivid language. It should be concrete not abstract, specific not general, and paint vivid word pictures.  Quotables, trilogies, repetition of the "hook" are all good. They stick in the minds of jurors.

One example that always comes to mind is the "hook" Michael Tigar used in opening in the Terry Nichols trial: "Terry Nichols was building a life not a bomb." He must have said that four or five times. In the end, the jury rejected the death penalty for Nichols, a huge feat. (Robert Hirschhorn was also the jury consultant in that trial.)

Opening statements are not supposed to be argumentative. The jury is not ready for argument.  At this stage in the trial, a story is more effective persuasion than argument. (The facts in the story argue for you. )

I think West will focus on the attack by Trayvon rather than what preceded it.

Of course he can't ignore what happened previously, but it won't be the focal point. It's enough to say there had been burglaries in the neighborhood. The neighborhood watch, started with assistance from Sanford police, urged residents to report people or things out of place. He wasn't "on patrol" or "on watch" that night. He was going to the grocery store, as he did every Sunday night. He had a concealed weapon on him for which he was licensed. He usually wore it when going to public places.

And then go into some details about spotting Martin and what he told the non-emergency calltaker about why Martin aroused his suspicion, (which included he acted like he was on drugs or something) and his actions after the call taker said "He's running? Which way is he running?

 He'll recount that George said "Okay" after the calltaker said "We don't need you to do that" and began walking back to his car when Martin appeared out of nowhere and asked him if he had a problem. He tried to diffuse the situation by saying "No, I don't have a problem." Martin said, "Well you do now" and decked him. 

I hope he then increases his animation as he stresses George's injuries, the suddenness of the attack, his calling out for help but no one came, his fear of serious bodily injury, his willingness to cooperate afterwards, the consistency of his statements (which, only had there not been some minor variations, might be cause for skepticism.) He'll likely refer to witnesses who are anticipated to support GZ's version of events. He'll tell them about credibility issues with some witnesses who may have a personal or financial interest, or bias or in the case (which will be in jury instructions.) He'll tell them what they won't hear from any witness -- that GZ physically confronted Trayvon.

As for what would be a good hook, any ideas? 

Offline Cylinder

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Re: Defense Opening Statement Expectations
« Reply #1 on: June 23, 2013, 10:50:53 PM »
In my layperson opinion, the primary theme of this case is that Martin's death is tragic and a product of his own actions. West needs to highlight that lethal force was the last option elected by Zimmerman - not the first. Zimmerman tried to fend off Martin's assault to no avail, he tried to extricate himself to no avail and he tried screaming for help to no avail.

Martin made the decision to break Zimmerman's nose. Zimmerman did not use deadly force. Instead, he tried to fend the attack off with his hands. Martin made the decision to mount and punch Zimmerman repeatedly in the face. Zimmerman did not use deadly force. Instead, he tried to struggle from underneath his attacker and extricate himself.  Martin made a decision to beat Zimmerman's head repeatedly against the sidewalk. Zimmerman did not use deadly force. Instead he tried to summon help from his neighbors. Only after being blindsided, watching the attack rapidly escalate and without the benefit of escape or outside assistance, Zimmerman acted to save his own life from the consequences of Martin's own decisions.
At any moment previous to this, Martin was in control. He could have called off the attack and fled. He could have eased the attack and allowed Zimmerman to flee. He could have responded to W6's warning. Instead, he continued acting to the very moment of this tragic conclusion.

My secondary theme is that Zimmerman cooperated with police and told the truth. West needs to correlate Zimmerman's claims with those of key witnesses and contrast that with those who saw or heard less. West needs to acknowledge that the state will try to cast Zimmerman a liar. That's their job. He can interdict some of this by pointing out that the closer a witness was, the more they agree with Zimmerman.
He needs to point out that Zimmerman did not give a vague justification that could fit whatever fact pattern that emerged or concoct a story after the fact to fit whatever evidence the police fed to him, he gave a specific recollection of events as he perceived them - a recollection that can be examined for truth by a jury of his peers. Why does Zimmerman's narrative fit W11s? Neither knew of the other's recollections. Why does Zimmerman's narrative fit W6's? Neither knew of the other's recollections. West needs to acknowledge that the state will twist the facts to suit their own version of guilt but those facts remain.
West needs to acknowledge the existing inconsistencies. Zimmerman wasn't reading a predetermined script. Multiple statements can be given multiple interpretations. Common sense tells us that if you repeat a story often enough, there will be variations. Variations are not lies.

Offline nomatter_nevermind

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Re: Defense Opening Statement Expectations
« Reply #2 on: June 23, 2013, 11:25:19 PM »
He'll recount that George said "Okay" after the calltaker said "We don't need you to do that" and began walking back to his car when Martin appeared out of nowhere and asked him if he had a problem.

If I were on that jury, the defense team would take a credibility hit with me, when I learned how much of the story was left out at this point. That includes:

The last minute and a half of the NEN call.
The period of time between the end of the NEN call and the start of the altercation.
Zimmerman discovering that his flashlight wasn't working.
Zimmerman going to Retreat View Circle.
Zimmerman deciding not to give the dispatcher the address he had supposedly gone there to get.
Zimmerman standing on Retreat View Circle, trying to get his flashlight working.
Zimmerman telling the dispatcher he wanted the responding police officers to call him on their arrival to arrange a meeting.

I'm not a lawyer. I can only look at this from the standpoint of somone who might serve on a jury. From that standpoint, I think it is better for a lawyer on either side to bring up the difficulties in his own case at the first opportunity. Just being willing to mention them begins the process of defusing them, making them seem less problematical.

I've read a few of Vincent Bugliosi's books on his cases, and I recall him expressing similar views.

Offline nomatter_nevermind

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Re: Defense Opening Statement Expectations
« Reply #3 on: June 24, 2013, 12:24:14 AM »
Why does Zimmerman's narrative fit W11s? Neither knew of the other's recollections.

W-11 didn't give an SPD interview until 3/2/12. She and W-20 made written statements on 2/26/12, but they are brief and sketchy. They describe the sounds, but they have nothing about location or movement of the source of the sounds. (87/184, 103/184)

In her interviews, I don't think she was asked if she had spoken to Zimmerman, or heard any second-hand stories about his recollections. She probably was asked this in her deposition, so West probably will be able to make this claim. But I don't think it is in evidence for us at this time.

Offline nomatter_nevermind

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Re: Defense Opening Statement Expectations
« Reply #4 on: June 24, 2013, 04:01:30 AM »
As for what would be a good hook, any ideas?

It was a dark and stormy night. Only, there wasn't really a storm. It was just a light to medium rain.

OK, seriously.

George Zimmerman only wanted to help. In his moment of crisis, there was no one to help him.

Offline TalkLeft

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Re: Defense Opening Statement Expectations
« Reply #5 on: June 24, 2013, 04:22:59 AM »
I think it is better for a lawyer on either side to bring up the difficulties in his own case at the first opportunity. Just being willing to mention them begins the process of defusing them, making them seem less problematical.

I agree. That's what I called "accepting the facts beyond change." You accept them, acknowledge them and work around them. But there' no need to dwell on them when you have powerful facts of your own to present and stress.

Offline nomatter_nevermind

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Re: Defense Opening Statement Expectations
« Reply #6 on: June 24, 2013, 05:51:20 AM »
All that follows is my opinion, except quotes attributed to others.

My secondary theme is that Zimmerman cooperated with police and told the truth.

If one of Zimmerman's lawyers said that to me as a juror, I would at some point conclude that he is a liar and an idiot, and that he thinks I'm an idiot. I might go to the judge and ask to be recused, because my distrust of that attorney makes a fair trial impossible.

If I'm looking at the sky, and the sky is blue, and someone walks up, looks me in the face, and says the sky is green, what do you think he gets for that?

Certainly Zimmerman's attorneys can make arguments to suggest that some of the difficulties I perceive in Zimmerman's statements are not as great as they at first appear. But trying to claim Zimmerman's alleged truthfulness as a major plus for his case, is something that will not work in my opinion.

Now, I have a question on a related matter. I know that you didn't mention that Zimmerman volunteered to be questioned without a lawyer. But I'm wondering if West will be allowed to argue that as evidence of innocence.

I don't think the fact of when a defendant got a lawyer should be concealed from the jury, but I also don't think either side should be allowed to argue that the timing is evidence of either guilt or innocence. But what are the actual rules?

All of the above, except for quotes attributed to others, is my opinion.

Offline Kyreth

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Re: Defense Opening Statement Expectations
« Reply #7 on: June 24, 2013, 06:06:25 AM »
I would bet the Defense makes that "George cooperated and told the truth" as their argument overall.  They hinted as such in jury selection.

The defense seems to be leaning toward the minor discrepancies being due to trauma, and I think they can demonstrate that quite well.

Offline Kyreth

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Re: Defense Opening Statement Expectations
« Reply #8 on: June 24, 2013, 06:18:20 AM »
In fact, I thin a simplied explanation of the Defense's theory will be (and apologies if this is a bit beyond the scope of the thread):

George got out of the vehicle in response to being asked where Tray on was running, and followed him a short bit. (George has acknowledged this.). George loses Trayvon before reaching the T, and agreeing to stop following.  Dispatch asks questions about George's address that he can't answer, so he continues on to try and remedy that.   After waiting with no sign of police, he decides it's too late, and returns to vehicle, and gets attacked within sight of his vehicle a short distance away.

And that any variations are minor issues of getting events out of order, due to trauma from the attack and shooting.

 

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