Today, the state began by moving to strike Serino's opinion that Zimmerman was telling the truth. Prosecutor De La Rionda said it was improper for him to express an opinion on credibility. Why didn't De La Rionda object yesterday? Maybe he was too immersed in his charts to notice? Here's a picture from today of De La Rionda during the playing of the Sean Hannity interview. (And no, I don't know if he had these in front of him yesterday. I just find them curious.)

The Court granted the motion to strike, and instructed the jury to disregard Serino's opinion that Zimmerman was telling the truth. O'Mara finished his cross, during which Serino again said he didn't think Zimmerman's account contained significant inconsistencies and also said GZ's actions in getting out of his truck, following Trayvon, and even speaking to him were not a crime.

The state then proceeded to walk Serino back through his other statements. BDLR asked Serino whether referring to people as "as*holes" or "punks" wasn't evidence of the person's ill-will and spite. He said yes, but on cross, acknowledged that it depends on the circumstances and isn't always indicative of ill-will or spite, and unlike when De la Rionda asked him the question, Zimmerman had no hostility in his tone when he used the word on the call to non-emergency.

I had to take a break when O’Mara was cross-examining Serino, but I heard him mention Emmanual Burgess, who committed several of the prior burglaries in the neighborhood. I have always thought that Burgess is Zimmerman’s best argument for using those phrases, particularly "they always get away." I’ve briefly mentioned him in comments, but I have a long post on him and the other non-emergency calls and neighborhood burglaries almost ready to go.

To prove second-degree murder, the state must prove Zimmerman acted with "a depraved mind regardless of human life." A depraved mind requires evidence of "ill will, hatred, spite or an evil intent." Case law is clear that "an impulsive overreaction to an attack or injury,is insufficient to prove ill will, hatred, spite, or evil intent."

See Dorsey v. State; Poole v. State, holding that defendant's act of stabbing victim once after the victim lunged at him in closed quarters was not sufficient to support second-degree murder verdict but was "an impulsive overreaction" to the victim's attack; Williams v. State, holding that defendant's act of stabbing the victim to end his attack was excessive but insufficient to support a second-degree murder conviction; Stinson v. State and the other cases I cite and link to here. Also check out Legal Insurrection.

What would be a significant difference in Zimmerman’s retelling of what happened to warrant the jury rejecting his version? To my mind, it would be a substantive contradiction, for example, if at first he said he shot Martin to protect himself and in later statements he claimed it was an accident and still later claimed the person shot himself. (This happened in one Florida case.).

Here are my thoughts on the other witnesses so far today. This is not a re-telling or recap of the day’s testimony, it is just the points that stood out to me.

The state called Mark Osterman, a federal air marshal and friend of Zimmerman's. Osterman and Shellie picked George up at the police station that night and the Zimmermans stayed with them for the next month.

Osterman wrote a book about George and the shooting and went on the Dr. Phil Show. In the book, written four months after his conversations with George, during which he didn't take notes, Osterman recounts his recollection of what George told him. The state pounced on a discrepancy as to whether Zimmerman said he holstered the gun while on top of Martin after the shooting and whether he said Martin had reached his gun or was reaching for his gun. O'Mara brought out Osterman had not taken notes of the conversation and he was writing of his recollection of what Zimmerman told him. Translation: Any inconsistencies may be due to Osterman's recollection, not Zimmerman's recounting of the event.

O'Mara asked Osterman if he was familiar with George's voice. He was going to ask him if the voice crying for help in the 911 call sounded like George's voice. The state objected as being outside the scope of direct and the court sustained. O'Mara will bring Osterman back to say it's Zimmerman's voice during the defense case. He remains under subpoena.

The court broke for lunch. After lunch the state played the video of Sean Hannity’s interview of George Zimmerman. There were no witnesses to introduce it and no testimony about it. Since Zimmerman’s version as provided to Hannity is consistent overall with his other statements, I’m not sure what the jury will make of it. They weren’t told what to look for.

The state called a medical examiner/pathologist Valerie Rao. She acknowledged Angela Corey recommended her to the Governor for one of her two positions. (Actually, as O'Mara originally asked her, and despite her runaround answer, she was appointed by Angela Corey to serve as Medical Examiner for the Fourth Judicial District.)

O'Mara didn't bring up the ten years of complaints in multiple cities against her including concerns expressed by law enforcement, funeral homes and organ donor organizations. Or the complaints by co-workers who said she called employees rednecks and criticized their weight. (These are in addition to the criticisms of her as an ME.) Her contract was not renewed.

Two internal memos on Valerie Rao are here and here.

She says Zimmerman's bruises did not appear significant. But she never examined Martin’s body and wasn’t on the autopsy team. She was emailed photographs and reports by the state and at times she said the photographs were poor and difficult to judge from. .

On cross-examination, Rao acknowledged Zimmerman’s injuries were consistent with his head meeting concrete, and that he could have been hit by Martin more than once. She says the abrasions on Martin's finger are consistent with him having struck someone. She says Martin had no other injuries. I think this hurts the state’s argument that Martin was screaming on the call. The only person with visible injuries who would be crying out for help and yelping as if in pain is Zimmerman.

Later she admits it's possible he was struck on the left side of the head four times, and the right side four times. She thinks it's one injury but it could be more. She identifies an area of swelling on his head not as a bruise or injury, but the result of his misshapen skull. When asked what slammed means (as in his head was slammed into the ground) she starts to give a definition from the dictionary. Objection by O’Mara, bench conference, sustained. The prosecutor then asks, “What does slammed mean to you?”

O'Mara keeps saying to her, "Your testimony is...." Why? Because he will call an expert who contradicts her testimony. His expert is Vincent di Maio, one of the country's foremost experts on gunshots and firearms evidence and a pathologist/medical examiner. He will testify Zimmerman's injuries are consistent with Zimmerman's account, and they were very serious.

O'Mara asks the state's expert if she understands that the extent of Zimmerman's injuries are not significant in this case. She can't answer, the state objects and the Judge tells O'Mara to move on.

O'Mara rephrases: You testified the injuries weren't life threatening? What about the next injury (meaning the one he didn't receive but could have had he not shot Martin?) The state objects, the court sustains the objection, but I doubt the point will be lost on the jury. Was he supposed to wait until he was struck with a blow that could cause death or great bodily harm before acting to stop the assault? Even Serino acknowledged that Zimemerman's injuries don't have to be serious for him to have a valid self-defense claim and indeed, he could still have acted in self-defense if there were no injuries.

The test is whether Zimmerman reasonably believed deadly force was necessary to prevent (1) imminent death or great bodily harm to himself or (2) the imminent commission of a forcible felony by Martin against him, such as aggravated battery.

While the jury does not have to accept Zimmerman's account, I think it will want much more to discredit his account than the state has provided thus far.

Then the court broke for discussion on exhibits the state wants to introduce from Zimmerman's college professor. Zimmerman took a criminal justice course and got an A. According to the state, the course book has a chapter on self defense. The state wants to show Zimmerman had some knowledge of or access to information about stand your ground, which he previously told Hannity he did not. The defense says stand your ground is not included in the course book. The state says the professor talked about it one day in class. The defense asks where's their proof Zimmerman was there that day? The state says it doesn't need any, that's a weight of the evidence not admissibility issue.

The judge gives the defense 30 minutes to look up case law. She's inclined to rule O'Mara introduced the topic of GZ's familiarity with such matters during questioning of the officers who conducted his interviews. When they returned, she decided to kick the can down the road until tomorrow, and told the state to call it's next witness. The next witness was a latent print person who testified about latent prints in general. I don't know what the purpose was, since I didn't hear her say anything relevant to this case. Maybe she said she there were no identifiable prints because O'Mara on cross pointed out that the lack of identifiable prints could have been due to the rain. No points to the state here.

The state also wants to introduce Zimmerman's letter of rejection from a police academy in 2008 and his request to ride along with the police in 2009. The judge asked for the dates and then said she'll rule later. This seems way too far removed in time to have any relevance.

None of the school material the state seeks to introduce has anything to do with the charge in the case. It is an attempt to impeach GZ on his statement to Hannity that he was not familiar with stand your ground. Apparently, it’s not in the course book but the the professor will testify he discussed it in class one day. How is having heard it mentioned in class (assuming he was there) probative of an incident two years later? Was there a test on it that GZ aced? That seems unlikely if it's not in the course book chapter on self-defense and the professor just discussed it in passing in class. The professor is hiking in New Mexico, and will testify by videophone if he gets near cell service.

I don't think the state disproved anything today or made any leeway into impugning Zimmerman's credibility. At most, it created question marks for the jury. The state's burden is not to create uncertainty but to disprove Zimmerman's self defense claim beyond a reasonable doubt. The impeaching material is so far afield, and in the case of the school information and police ride-along, so dated it's unlikely in my view to have an effect on the jury. At most, it might result in some uncertainty (that I expect will be resolved favorably to Zimmerman when the defense puts on its case.)

If at the end, the jury is uncertain about the evidence, their verdict should be not guilty.

I also think the state is grasping at straws and damaging its credibility with the jury by arguing that Zimmerman’s reference to home invaders in his neighborhood who get away as “as*holes” and “punks” means Zimmerman acted with a depraved mind, an indifference to human life, ill will hatred or spite towards Martin. By over-charging Zimmerman with second degree murder, it has put itself in a pickle. But it has only itself to blame. When Prosecutor Angela Corey decided to avoid the grand jury and make the charging decision herself, I wrote that it was because she only had half a ham sandwich and forgot the mustard. The way I see it, on this 7th day of testimony, even that’s been gobbled up, and all that’s left is the pickle of the state’s making.

Of course, no one should declare victory as the case is far from over. The state has many more witnesses and the defense has yet to present its case. It would be foolish for anyone to say how it will end at this point. My thoughts are merely my perception of the weaknesses in the state’s case and the opportunities the defense has had to expose some of them to the jury.