Judge Debra Nelson Backtracks: Will Allow Toxicology Report Offered As Evidence In George Zimmerman Murder Trial

Images Trayvon Martin posted on his Twitter account

I had some pretty harsh words this past weekend for Judge Debra Nelson after she denied a defense motion to at least dismiss the second degree murder charge and leave it for the jury to decide whether George Zimmerman's killing of Trayvon Martin constituted manslaughter or reasonable self defense. Based on my personal observations, it is my view that Judge Nelson has been way too partial to the prosecution on almost every issue that has come before her to decide in the trial of the Sanford, Florida neighborhood watch captain on charges that he shot and killed the 17-year old Martin with ill will, malice or hatred, the proof of intent required to prove his guilt under Florida law.

My concern about Nelson's actions in the case are primarily related to her decisions to liberally allow the prosecution to use evidence in Zimmerman's past, including his school records and past work as a neighborhood watch captain, to paint a picture of him as a wannabe cop who had grown increasingly frustrated and acted out his dream with reckless and intentional disregard for the life of Martin. At the same time, Nelson has denied efforts by Zimmerman's defense team to offer any evidence of Martin's past that would reflect on his predisposition to initiate a physical confrontation with Zimmerman. That includes evidence of being kicked out of school for fighting, arrested by police for delinquency and his open talk among friends on social media of his use of marijuana.

Zimmerman told police during a call prior to the shooting that Martin was walking aimlessly on a rainy night in the neighborhood that had been plagued by break-ins. Zimmerman told police Martin was acting suspiciously and appeared to be on drugs. A toxicology report taken by the medical examiner revealed the presence of THC in Zimmerman's blood, indicating that he may have been smoking marijuana prior to the physical confrontation between him and Zimmerman that resulted in Martin's death. Prior to trial, Judge Nelson ruled that the toxicology report could not be used as evidence at trial by the defense.

During the testimony of Dr. Shiping Bao, the medical examiner who performed the autopsy on Martin's body, he revealed for the first time that he had altered the opinion that he held before trial, which concluded that the level of THC in Martin's body would not have affected his mental state on the night of the shooting. Dr. Bao said he altered his opinion to conclude the drug may have impaired Martin's judgment on the night of the shooting after consulting other experts. Judge Nelson still would not permit him to testify about his latest findings when he was offered as a witness for the prosecution. Today, Judge Nelson had a change of heart and decided it would be reversible error based on her reading of Florida case law not to allow the toxicology report and expert testimony on the potential impact of the drug on Martin's judgment to be offered as testimony by the defense. Was she reading some of the harsh legal commentary of her trial performance over the weekend towards her treatment of Zimmerman?

The prosecution is, not surprisingly, very upset with Judge Nelson's ruling, which they see as allowing the defense to offer bad character evidence through the back door. Although not presented for that purpose, the six jurors will for the first time in the trial hear evidence that contradicts the boy scout image portrayed by the prosecution instead of the juvenile delinquent he had shown himself to be shortly before his own mother kicked him out of the house and told him to go live with this father. Judge Nelson's ruling will allow the defense to offer expert testimony on the potential effects of THC on Martin, but the prosecution will be allowed to rebut that evidence with their own expert testimony.

The defense also had a good day as they presented witness after witness who testified that the voice of the screaming person heard on the 911 call made shortly before Zimmerman shot Martin was the voice of Zimmerman. The defense even called the victim's own father after offering the testimony of the two principal police officers who investigated the shooting that Tracy Martin had told them after listening to the 911 tape that the screaming voice was not Trayvon's voice.

Martin admitted on the witness stand that he had told the police that he wasn't certain whose voice it was he heard on the 911 tape, but he insisted that he never stated with certainty the voice did not belong to Trayvon. He said that after listening to the tape about 20 times during a meeting in the Sanford mayor's office with the mayor, city manager, several lawyers and other members of the family, he concluded that it was Trayvon's voice. Incredibly, Martin claimed that he had not discussed what he heard or said to police about the 911 tape with anyone else before the meeting where Sybrina Fulton, Trayvon's mother, claims she heard about it for the first time in the mayor's office with the civil lawyer who helped her and Trayvon's father collect $1 million from the homeowner association's liability insurance carrier for their son's death. The defense also called the former Sanford police chief, who didn't approve of the playing of the 911 tape to the family members in a meeting that excluded the investigating police officers and himself during the unusual meeting convened by the city's mayor.