Updated:SANFORD, Fla. —
Prosecutors can argue in opening statements that George Zimmerman profiled Trayvon Martin based on factors such as age or clothing before he shot the unarmed 17-year-old, but they cannot say he was profiled based on race, a judge ruled Friday.
Judge Debra Nelson made the ruling ahead of Monday's expected opening statements in Zimmerman's second-degree murder trial. He has pleaded not guilty.
Defense attorneys had asked the judge to prohibit prosecutors from using a series of words in opening statements that they deemed inflammatory.
Those words included "profiled," "vigilante," "wannabe cop," and that Zimmerman had confronted Martin, who was black. Zimmerman identifies himself as Hispanic.
The judge said all of those statements may be used, provided that race is not discussed if the issue of profiling is brought up.
Prosecutor John Guy had argued that there were a number of ways someone could be profiled other than race.
"That is not a racially charged term unless it's made so, and we don't intend to make it a racially charged term," Guy said. "There are a number of avenues someone can be profiled in any one way or combination. We don't intend to say he was solely profiled because of race."
“OK, so, you're saying that you will not use race in the use of the term, ‘profiled?’" asked Nelson.
“Not that exclusively,” said Guy.
“I would say, I would ask the state to stay away from racial profiling but not the word ‘profiled’ itself if it's used in other terms,” said Nelson.
Defense attorney Mark O'Mara said he was concerned using the word "profiled" would infect the jury with a racial component that shouldn't be there.
“When you use the word ‘profiling,’ it's like peanut butter and jelly. Profile and racial,” O’Mara argued. “I’m very, very concerned that we now infect potentially the jury with a racial component that is not going to show up in facts.”
The hearing got heated Friday, but WFTV legal analyst Bill Sheaffer expects Nelson to change her tone when the jury is in the courtroom.
“We have tried so hard in this case not to make it what everybody outside the courthouse may want it to be,” said O’Mara.
“Don't you think that the, neither side wants that to happen and to have those kinds of errors occur, in the trial,” said Nelson.
“Do you want my answer to that?” asked O’Mara.
When defense attorney Don West pressed the judge to rule on whether so-called "self-serving" statements made by Zimmerman about the shooting death of Martin should be heard by the jury, she lashed out.
“Could we have the motion heard today or later today? That would be fine,” said West.
“If you want my Frye order today, I can't sit here in court all day,” Nelson responded.
Sheaffer said there's often tension between judges and defense attorneys.
Defense counsel is always pushing the envelope. That's part of their job,” said Sheaffer. “The court often pushes back but what you won't see is this judge pushing back in front of the jury. That could lead to an issue on appeal should there be a conviction.”
Sheaffer said if it does happen in front of the jury, the defense would argue that she is.
The jury is made of six females who were chosen and sworn in on Thursday.