McClatchy Newspapers, Published May 27 2012
Witnesses contradict each other, change stories in Trayvon Martin case
MIAMI - The fight between George Zimmerman and Trayvon Martin began with two people huffing and puffing in the dark, and then a brief exchange of bitter words.
It wasn't long before the two were wrestling on the ground, and one of them let out such gut-wrenching howls that several people in the neighborhood thought they might have come from dogs. Witnesses said the tussle grew louder as it made its way up a dark pathway, past several patios, from the concrete back on to grass.
From there, witness accounts diverge.
“The one guy was throwing blows MMA style,” a man called Witness No. 6 told Sanford Police, later explaining his reference to mixed martial arts. “The one getting beat up, I'm guessing he was yelling out help, because he didn't want it to come to that point, and then it came to that point where he was on the concrete. I don't know if you ever got hit on concrete, it hurts.”
His recorded interview with Sanford Police was just two minutes long.
But like several of the nearly two dozen witnesses interviewed by four different law enforcement agencies, Witness No. 6 was hampered by darkness and, the evidence suggests, influenced by news. A review of the testimony of witnesses to the Feb. 26 killing shows several of them modified their accounts or grew skeptical of their own recollections after weeks of news coverage. Several said they reshaped their stories because of what they learned on TV.
In addition, some people heard a second shot that was never fired and saw shirts nobody wore. Together, the testimony they offer is contradictory, possibly of little evidentiary value, and underscores the unreliability of eyewitness testimony in criminal cases.
“Memory does not function like a videotape that records everything and can be replayed at will,” said Karen Newirth, an eyewitness identification litigation fellow at the Innocence Project, a national organization that works to exonerate innocent people. “People remember pieces of events, and then fill in the blanks with what makes sense.”
Based on the descriptions he offered, witness No. 6 _ most of the witnesses in the case are identified only by number on prosecution records made public last week _ saw Trayvon Martin on top of Zimmerman, punching him. But when he was interviewed three weeks later by the Florida Department of Law Enforcement and a local prosecutor, No. 6 said maybe the man on top wasn't throwing any punches, and perhaps was just pinning the guy down until the police came. Maybe it wasn't the guy on the bottom calling for help after all.
“That's just an assumption,” he said. “I can't tell who was yelling.”
One witness, No. 2, told Sanford Police she saw two people running, and later, when prompted, she clarified that the space between them was about 10 feet. She saw a “fistfight” – “fists” – she stressed. A week later, she told the same detective that she “more heard it than saw it,” and did not have her contact lenses on.
“It was a glance, running,” she told Sanford Police Detective. Chris Serino. “I kinda more heard it than saw it. I heard it.”
When she met with Department of Law Enforcement investigators, she said she “saw something out there,” perhaps just one person whose feet she heard running.
One witness, a 13-year-old boy, told investigators he saw a man in a red shirt crying for help, but told reporters he could not tell what clothes the injured person wore. Zimmerman wore a reddish-orange jacket.
Another witness, No. 12, said she wasn't sure who was on top of whom. But when she had time to think about it, she decided it was definitely Zimmerman on top, because she had seen him on TV and he was larger.
Prosecutor Bernardo de la Rionda asked her if by larger, she meant “broader.” “Yes,” she said.
Zimmerman was much shorter than Martin, but wore a size 38 pants and was consistently described by most of the witnesses as the larger of the two.
Newirth, of the Innocence Project, said memories are affected by stress, the presence of a weapon, and can be influenced by everything from the question an investigator asks, to media reports and statements of other witnesses. The phenomenon is known as “memory contamination.”
“I think in a case like this, there is likely contamination coming from all over the place,” she said. The Innocence Project is not involved in this case and has not reviewed the evidence.
Studies show that people who witnessed the same simulated event reported different memories depending on the language used by the questioner. People who were given false information about the simulated event often incorporated the made-up details into their own accounts.
Newirth said studies also show people's memories change as they learn more information about the incident they saw, making it critical to get their full accounts early and in their own words.
The recordings submitted as evidence by the Sanford Police conducted the night of Martin's killing showed investigators only taped about two minutes with each person.
“Memories do not improve over time,” she said. “In fact, they worsen over time and the worsening, which is demonstrated by something called the memory curve, begins very soon after the memory is created.”
“Ear witnesses,” who heard something but did not see it, she said, are even less reliable then eyewitnesses.
There were no follow up interviews for the teenage witness or the two ear-witnesses who vehemently believed Trayvon Martin called for help and that Zimmerman shot Martin from some distance from where the fight occurred. Department of Law Enforcement tests on Martin's shirt show he was shot at very close range.
In an interview, Zimmerman's defense attorney, Mark O'Mara, said the witness testimony seemed to change, and sometimes appeared to be swayed by the prosecutor's probing. At least one witness said she was basing her testimony on a 2005 picture of Zimmerman, when he weighed significantly more than he did at the time of the shooting.
“It's a good thing they have to prove this case,” he said of the state attorney. He declined to comment further on the witness statements, saying he is prohibited by attorney rules of conduct.
“If I were to say, ‘Hey, the evidence looks great for my guy,’ it would be commenting on the evidence,” he said. “I'm the one who has been complaining that everyone has been making up their mind with less than half the evidence. I am trying to undo the horrible prejudice done to my client.”
O'Mara said other evidence has yet to be turned over to him, including forensics and FBI reports. Other evidence has been seen by him _ but not by the media _ because both sides are trying to have some materials sealed by the court.
Reporters were able to read autopsy reports showing Martin died of a contact wound to the chest, which pierced his heart. There was nothing under his fingernails and each person had the other's blood on his shirt.
Reporters have not been given access to any of Zimmerman's statements to police. The prosecution said some “are contradictory, and are inconsistent with the physical evidence and statements of witnesses.”
A hearing has been scheduled for June 1 in which the judge will decide whether to seal the confessions and other materials such as the witness names, cellphone records and crime scene photos. The lawyers also want to keep under seal the taped interviews of a woman who made an unrelated allegation against Zimmerman.
“I know things he's done to me that I would never talk to him, ever again,” the woman said in a brief portion of her interview that was made public.
O'Mara said it will be at least six months before he will have reviewed all the evidence and done all the work necessary to file a motion asking for the case to be dismissed under Florida's “Stand Your Ground” law.
Orlando attorney Derek B. Brett, who represented one of the witnesses, said it would not surprise him if witnesses were infuenced by heavy media coverage. Ultimately, inconsistencies in witness statements can only benefit one person: Zimmerman.
“I don't see how they are going to convict,” Brett said. “It has nothing to do with whether I believe my client's testimony: she saw shadowy figures struggling in the dark. That doesn't mean much, nor should it. At a minimum, there's reasonable doubt.”