Zimmerman: The Court Should Consider Appointing a Special Master to Review Discovery Documents

Frances Robles of the Miami Herald reports today:

George Zimmerman’s defense lawyers will subpoena Facebook, Twitter and Miami-Dade schools in a widespread pursuit of clues to suggest that Trayvon Martin could have thrown the first punch on the night he was killed, a sign that attorneys are going into attack mode in preparation for their case.

A series of notices were sent last week to Miami-Dade Schools Superintendent Alberto Carvalho and the principals of the schools Trayvon attended, advising that subpoenas for copies of the slain teen’s academic and attendance records would be issued in 10 days’ time.

Similar warnings are expected to be sent this week to the popular social networking sites where Trayvon maintained accounts, defense attorney   Mark O’Mara said.

[snip]

The subpoenas demand disciplinary records, suspension notices, class schedules, attendance and tardiness records, FCAT and SAT test scores, report cards, as well as any information about whether Trayvon belonged to any clubs or sports activities.

O’Mara is fishing for bad character evidence to support Zimmerman’s claim that Martin was the aggressor and acted like a psycho gangsta.

I discussed the admissibility of bad character evidence in my Friday evening post, Zimmerman: What Kind of Character Evidence will be Admissible at Trial?

I said,

“This rule allows Zimmerman to introduce any competent and relevant evidence he can find that supports his claim that Martin is a psycho-gangsta, a person who is physically aggressive and likes to start fights. Such evidence, assuming he can find any, would support his claim that Martin turned into a psycho-gangsta who suddenly appeared out of nowhere, confronted him as he was minding his own business walking back to his truck, sucker-punched him in the nose for no apparent reason, and tried to beat him to death with his bare hands.

I am not aware that any such evidence exists and I doubt he will find any. However, assuming for the sake of argument, that he does, that will open the door to permit the prosecution to introduce evidence that Zimmerman acts like a psycho-gangsta.

I think Zimmerman would be well advised not to open that door.”

I understand and sympathize with his parent’s concern that the defense, which has exhibited a focused intent on trying its case in the media, will use the information it finds, no matter how innocuous, to assassinate Martin’s character. Zimmerman’s supporters, for example, have waged a racist and no-holds-barred campaign of distortion, vicious lies, and character assassination against Martin, his family, their supporters, and anyone who challenges George Zimmerman’s credibility. To expect them to do less with any information obtained with these subpoenas for school-records, Facebook, and Twitter accounts would be naive. Nevertheless, if there is any evidence in those records that Martin was an aggressive bully, I think he is entitled to it.

But what about other sensitive private information, assuming such information exists? What about information protected by privacy laws?Should private information be disclosed and publicized to become fodder for the pro Zimmerman crowd to continue its irresponsible and reprehensible attacks?

A possible solution would be to use the in camera review process to screen information. The defense and prosecution agreed to allow the judge to do an in camera review of Zimmerman’s medical records. Why not also rely on that process for the records O’Mara is requesting?

There is no great mystery about what evidence would be admissible, if it exists. Therefore, in camera review appears to be an ideal and fair solution to assure that the defense gets what it has a right to have and nothing more.

The Court also might want to consider appointing a Special Master to handle all in camera document review. This would free up the judge to handle the usual duties without becoming over burdened and possibly prejudiced against one side or the other due to the document review.

123 Responses to Zimmerman: The Court Should Consider Appointing a Special Master to Review Discovery Documents

  1. Nkechi T Ayo says:

    I am firmly standing behind bringing a Civil rights violation case.I have spoken with my son who is a prosecutor with the Gov and we discussed that in depth..I look forward if when all else falls apart..

  2. TruthBTold says:

    Osterman also stated that TM had his knees on GZ’s rib (something like that). Again, as many of are wondering, how could TM have seen the gun and how could GZ have gotten to it? Did he go on the outside of his thigh/knee area? Under? Just not making sense that that’s how he got to his gun. They should have had an audience Q&A with some of us in the audience LOL.

  3. TruthBTold says:

    Professor wrote,

    “Nevertheless, if there is any evidence in those records that Martin was an aggressive bully, I think he is entitled to it.”

    I agree with your post and said similar that all things considered, going down this road seems not to be a good move. To your comment above, if there is any evidence that TM was an aggressive bully in light of what we know happened as far as GZ’s mind state, exiting his vehicle, DeeDee’s account, etc., it seems like it would still be grasping at straws on their part. If it was another type of incident, then I can possibly see it having some relevance or impact but just not in this case.

  4. rachael says:

    Now Osterman saying George has never been in a fist fight in his life. They make him out to be a 90-pound weakling. Why does no one ever acknowledge that he was a bouncer!!!!

    • TruthBTold says:

      @Rachael,

      They really do make him out to be some weak non-confrontational person. Even if a person is not that “skilled” in fighting dag, there is still something that kicks in when you are in a situation. Whether it be swinging your arms or something; this is a grown man.

      • Brown says:

        that’s what Alicia kept saying he is a grown man.

      • Malisha says:

        The biggest issue, for me, is how George could have had his hands and arms available to him ONLY at the moment when he realized Trayvon’s hand was moving down his chest toward his gun. BEFORE THAT he would have us believe he was lying under Trayvon, armless and legless and handless, could squirm (wiggle, wriggle, shimmy, doo-wop doo-wop) but could not do a damn other thing? Couldn’t, for instance, bring up his knees to knock into Trayvon’s back and throw him off? Could not, say, grab Trayvon’s hoodie and jerk hard to the left to throw off his balance? Could not bite Trayvon’s hand when it covered his mouth? Could not fling himself over so Trayvon was unseated? Could not punch Trayvon’s elbow — oh forget it. Zimmerman’s lie is so obvious it’s embarrassing that he repeated it after the first interview, and it’s amazing Singleton and Serino kept a straight face hearing it from him. You could throw a 180-pound kid on top of ME (I’m 65, never trained as a bouncer) and I could have him off me in ten seconds unless I was bound and gagged first. (Or unless I kinda like him there…) It’s ridiculous.

  5. Bill Taylor says:

    osterman needs to read the nen call transcript he clearly doesnt even know what was said.

    • EveryoneIsEntitledToTheirOpinion says:

      Bill Osterman doesnt care how he looks… Its amazing….at least orchestrate the lie better…. Hes in hot water if they have evidence of him near the scene or a phone call at least…

  6. rachael says:

    Now he is saying that GZ misinterpreted what the dispatcher said to him – yet in GZ’s OWN HANDWRITTEN STATEMENT – he acknowledged that he was told not to follow. He didn’t misinterpret anything.

  7. rachael says:

    Osterman talked about the concussion again. What concussion? Who diagnosed a concussion and when? OMG!!! Unreal.

  8. Bill Taylor says:

    WOW he just said zman has earned money and done NOTHING with that money except mentor kids….osterman is a clear compulsive liar.

  9. Bill Taylor says:

    now osterman is showing he isnt very bright, he is directly contradicting the recorded NEN call…..claiming they told zimmerman to follow martin.

  10. Bill Taylor says:

    off the bat osterman starts off as if they KNEW there was going to be a fight ans scuffle for the weapon……..a silly comment he made about why no safety on the weapon.

  11. Angelia says:

    In “the other place” a respected poster has raised the issue of the leaglity of GZ’s gun. I scrolled back through past articles and did not see anything. If I missed it, please post a link for me. Here’s what I found on the FL CCW application site:
    “QUESTION 9
    If you have been FOUND GUILTY OF, HAD ADJUDICATION OF GUILT WITHHELD FOR, OR HAD IMPOSITION OF
    SENTENCE SUSPENDED FOR ONE OR MORE MISDEMEANOR CRIMES OF VIOLENCE, you are NOT ELIGIBLE for a
    Florida concealed weapon license unless a period of three years has elapsed since probation or any other conditions set by the
    court have been fulfilled (or the record has been sealed and expunged). If you answer YES to this question, you must submit
    a copy of the document issued by the court or probation office evidencing completion of probation or other court-imposed
    conditions. Alternatively, you can submit a copy of the court document ordering that the record be sealed and expunged.”

    Click to access concealed%20weapon_applicationinstructions.pdf

    “HAD ADJUDICATION OF GUILT WITHHELD” and the following portion regarding submitting documentation of conditions satisfied and/or documentation of sealed/expunged, caught my eye. I think GZ is far too impulsive and immediate gratification demanding to have done this. In fact, I’d bet money he just answered the question “no” and moved on to the next question. I don’t believe he has the ability to follow the logical line of reason that having a firearm means you might use it. IF you have to use it, it needs to be liscensed. AND, license must be legally obtained. I think GZ stopped at, the gun must be licensed. I don’t believe he followed the addition logic that the license must be legal, as well.That’s just too complex and interferes with his need for immediate gratification and lack of impulse control.

    Note GZ’s application has not been released, in discovery. Is it the (unnecessary, but nice to have) “smoking gun”?

    Almost certainly one of the first things Corey’s teamwould have done is get the application to verify the status of the gun? Corey’s team decided to charge murder two a week before we heard about it, and only 2 weeks into her investigation. It clears up why Gilbreath was unconcerned as he answered questions about what evidence the prosecution had/didn’t have regarding who struck the first blow, if GZ was returning to his truck, and if his head was/was not bashed on “concrete”.

    It would also add clarity to O’Mara’s SYG to standard self-defense change. SYG requires the person making the claim not be involved in criminal activity. Standard self-defense makes no such stipulation, in the statute. GZ carrying an illegal firearm would be ciminal activity, yes?

    IF, my belief that GZ did not delay (and possibly deny) his gratification at having a CCW, by answering the question truthfully and filing the appropriate documents, is accurate; does this not fundamentally change the case?

  12. Bill Taylor says:

    dr Phil coming on now

  13. ks says:

    I’m hearing that the Ostermans apperance on Dr. Phil’s show was a disaster. lol. Did anybody watch or can anybody confirm?

    • rachael says:

      It will be starting here on the west coast in 9 minutes, I will be watching.

    • rachael says:

      Right out of the gate, lies. Trailer before the show Osterman says when GZ came to his house, he was suffering from a “severe concussion.”

      SMH

      • TruthBTold says:

        @Rachael,

        They are trying to throw out certain words and phrases that they think will stick with people to try and amplify GZ’s claims and justify his decision to discharge his weapon. So words like concussion, New Black Panther Party, mentoring, he broke down crying, he look like he was mugged, are all playing to the viewing audience.

      • SouthernGirl2 says:

        @Truth

        Have you seen the full interview? I’ve been searching for the video but can’t find it. It must have been a disaster because the tree people were fuming this afternoon. I want to hear what Alicia has to say. A friend said she DESTROYED the Ostermans and with tears in her eyes.

  14. Angelia says:

    I think having a special master might be helpful. Freeing up the judge and preventing a possiblity of bias can only be good things. Here in MI, two federal magistrates were tasked with going through the hundreds of thousands of texts and emails resulting from the Kwame Kilpatrick debacle. We don’t know what has been found, yet, as that trial is in the process of selecting a jury. But, Kilpatrick and 3 others have over 30 federal charges pending, including RICO.

    I don’t believe GZ is very smart, and I also don’t believe he’d be able to resist communicating about what happened, placing himself in the position of “valiant victim/hero”. A special master seems like a good solution, both for the prosecution with regards to Trayvon’s school/social records and for the defense with regards to GZ’s medical records.

  15. SouthernGirl2 says:

    Osterman really makes me sick.

    The Couple Who Hid George Zimmerman Says He ‘Had Every Right’ To Kill Trayvon

    http://www.businessinsider.com/dr-phil-interviews-george-zimmermans-best-friends-2012-9

    In a blockbuster exclusive interview, TV personality Dr. Phil McGraw sat down with Mark and Sondra Osterman — George Zimmerman’s best friends who hid the neighborhood watchman after he shot and killed 17-year-old Trayvon Martin.

    In the interview, which is scheduled to air Tuesday, McGraw asks the couple what they think about Zimmerman’s actions, and what, if anything, they would change about the aftermath.

    “George had a bounty placed on his life, dead or alive, for $10,000, issued by the New Black Panthers,” Mark Osterman told McGraw. “George wanted to leave to protect us. I advised him that if someone came to my front door, they wouldn’t be dealing with a firearms apprentice any longer. They better come well-rested and be ready. We were going to be in this boat together. That’s what brothers do. I am 100 percent convinced that George Zimmerman is completely innocent. He stood his ground, and he had every right to do so.”

  16. Punchie says:

    This Osterman continues the lie. Zim never took a lie detector test.

    • jd says:

      Although I grow tired of repeating this, it’s worth noting that the “voice stress analysis test” GZ was administered was nothing but a ruse to keep him giving statements to police. In the hour-plus it took to go through the motions, he was seated in a room alone with the female investigator SIngleton and left to stew – this is a common interrogation tactic and sure enough GZ fell for the bait and spoke out to pass the time and fill the empty space, saying things that can and will be used against him at trial.

      Then, when the test administrator arrived, he again told an inconsistent and contradictory version of his (false) narrative that does not align with the descriptions on his NEN call to police dispatch.

      THIS is the “result” of his “test.” The test itself is worthless, cannot be used in a court of law and was a ruse to keep George cooperating and talking. They gave him the impression that he “passed” the test as a “good cop” method to keep him talking.

      Word to the wise: lawyer up and never answer police questions or offer statements without your counsel present. Nothing good will come from it, ESPECIALLY if you are innocent. George, IMO is not innocent but it is his own words that will convict him more than any other evidence or testimony.

  17. SouthernGirl2 says:

    OK Buddy! Zimmerman’s Best Friend Claims He Almost Died The Night He Killed Trayvon Martin

    http://globalgrind.com/news/george-zimmerman-best-friend-dr-phil-interview-video-trayvon-martin

    George Zimmerman’s best friend Mark Osterman appeared on the season premiere of Dr. Phil yesterday, September 10. During the episode, which was all about Zimmerman, Osterman revealed some interesting information about the night Trayvon Martin was tragically killed.

    Osterman claims Zimmerman almost died, telling Dr. Phil:

    “The injuries he had to his head could not be sustained for any period of time without either becoming unconscious or dying,” said Mark Osterman.

    He said I’m blacking out. I feel I’m going to die,” Osterman claims Zimmerman said after Martin’ s death. “He told the police that. He said that in lie detector test, all of which they have. If they connected all this together from George’s perspective he felt I am going to die.”.

    • Gee, that must be why Zimmerman’s vital signs were normal and the medic who wiped his head off insisted Zimmerman be taken to the ER that night before any questioning by police.

      Yet again, we see the Zimmerman principle exhibited in all its wondrous glory.

      One must assume he is lying unless credible independent evidence backs him up.

      Corollary: Osterman is not an independent credible source of information.

      • Bill Taylor says:

        there is simply no way on earth that zimmerman told the medics that stuff, they would have taken him straight to the ER…….and YOU are correct his vitals signs also show he was NOT even in a fight that night, because it is not possible to be in a life or death fight for over a minute and have normal vital signs minutes later.

    • William Walton says:

      When I slipped on ice and fell to the pavement, I had substantially more external trauma than CZ was shown to have, I did not just have some scratches on my head. Both eyes had blood under the lower lids, I had a large abrasion which was bleeding, and I did not come close to losing consiousness. However, several years later, I suffered a subdural hematoma which reqired brain surgery. Nothing like CZ appeared to have sustained. It could be that the abraisions seen on the back of CZ’s head were self inflicted.

    • rayvenwolf says:

      Reading that and watching AMMO spout that nonsense on Dr. Phil reminded me of GZ’s brother’s interview with PM. I guess they figured people were more likely to buy that story now.

      • ks says:

        Yep, same story different day. I guess that they haven’t learned yet that such obvious and so over the top exaggerations hurt GZ’s case.

    • Dennis says:

      I did not watch the whole interview but from the clips I saw it seems that Dr. Phil doesn’t buy Zimmerman and Osterman’s bullshit claims. You should have seen Osterman’s face when Dr. Phil commented on how Osterman helped Zimmerman pick out the gun that he murdered Martin with. Osterman made himself look like a fool on national television. Where is Osterman anyways? Is he in hiding with Zimmerman?

  18. Brown says:

    follow new thread

  19. Xena says:

    Published 4/5/12. This was on CNN before GZ was arrested. Same subject as the current subject; i.e., Trayvon’s school records.

  20. I just learned the Trayvon put the skittles in his pocket at the 7-11 and the tea went in the plastic bag. I could not find any info where the tea was examined for blood etc. I am sure T’s hands were thoroughly tested but cannot find that in the docs. Can anyone tell me if the 7-11 plastic bag was found near the crime scene? I thought it was but could be wrong.

    • Yes, the 7/11 bag was Item 2 (tan plastic bag) in the debris field.

      • Fred~~I am trying to come up with the lack of bruising or cuts on Trayvon’s knuckles. Z could have easily put the tin of tea in T’s pocket when he was manipulating the remains and turning it over. In his depraved mind, he could try and say that he thought it was a weapon. One thing for sure, Z did not want to have to explain shooting T in the back so he saw his opportunity to shoot him at close range in the heart. This is probably the reason Z was concerned with a back exit wound. I don’t think the state will have any problem proving Z acted with a depraved mind and was obsessed with taking a bad guy ( in his mind) out of society. JMO

  21. JMO~~I do not believe that Z was reaching for his cell phone when T supposedly punched him in the nose. I honestly think Z went for his gun and Trayvon swung the plastic bag containing the tea and skittles at him striking Z in the nose and knocking him backwards. The back of Z’s head grazed the edge of the sidewalk. Trayvon did not instigate the altercation. He was trying to stop Z from getting that gun but did not succeed. Zimmerman got the gun and aimed it…this is when T screamed for help.

    • Rachael says:

      I believe that is when he went for his gun too.

      • Xena says:

        Just tossing something out here — there is something associated with the key chain, the tactical flashlight, and the gun. It is reasonable that a person would toss the flashlight that isn’t working before they toss the one that is and continue to carry one that isn’t. Tactical flashlights have grooves on top so LE can place their firearms in those grooves.

        GZ makes no mention about the key chain, found at the T with the flashlight on, neither the tactical flashlight that was found close to Trayvon’s body.

        What GZ would have us believe is that he was knocked down, still holding onto his tactical flashlight. That he was being punched in the face and not use that flashlight in his defense. While his head was being bashed, he was still holding onto that flashlight. When he shimmied onto the grass, that flashlight was still in his hand. Amazingly, not once would Trayvon see the flashlight as a potential weapon to take from GZ and use to beat the living daylights out of him.

        With these questionable acts going on while still holding on to the flashlight, it is reasonable to believe that GZ only dropped it when it became too inconvenient — Trayvon was too close for GZ to aim and shoot with the gun in the grooves of the flashlight.

    • Dennis says:

      That seems very likely since Martin was carrying his 7-11 bag and his cellphone, which means he has no free hands to swing with. I would assume that if the force was great enough to break Zimmerman’s nose, there would be damage to the Arizona can or the cellphone. Maybe the prosecution is keeping that information until trial, since I have not heard anything regarding that evidence. If the prosecution can prove the can or cellphone did the damage to Zimmerman’s face, it would obviously be in self-defense rather than an act of aggression.

    • gblock says:

      What I see as a very plausible scenario (not necessarily the ONLY plausible scenario) is that GZ tried to grab or tackle TM and TM caused the broken nose (perhaps with his head) while trying to get loose.

      • Malisha says:

        “The broken nose” assumes a fact not in evidence.

        NO evidence George Z’s nose was ever broken, MUCH LESS broken on 2/26/2012 between 7 and 7:30 pm.

    • TM says:

      Excellent, excellent thought Mainstreamfair

  22. SouthernGirl2 says:

    Tuesday 9/11 Season 11 Premiere George Zimmerman

  23. bettykath says:

    I’m getting concerned about the amount of rhetoric against O’Mara for just doing his job.There seems to be a lot of nasty speculation on his intentions.

    What he has asked for is reasonable in putting together a defense. It’s not clear to me that his actions are all about agitating the GZ fans for money. It could be but it really isn’t clear that’s the case.

    As to the appropriateness of the subpoenas, If the schools or internet providers think it is unreasonable they can ask for the subpoenas to be quashed.

    The professor’s suggestion that a master review all material before it gets turned over is a good one. Let’s hope it happens.

    Critiquing someone’s unethical actions are one thing but assuming bad intentions for reasonable requests for information is something else entirely.

    disclosure: I’m not a fan of lawyers and have my own experiences of their arrogance, lack of ethics, and greed.

    (Family lawyer cannot represent the wife b/c he is representing the husband: “Take this note to my colleague. He’ll do a good job of representing you”. Wife opens the envelop and reads note: “Two chickens. You pluck this one, I’ll pluck the other.” Now this may be an urban legend, or not. It’s not far from my experience.)

    • PYorck says:

      I’m getting concerned about the amount of rhetoric against O’Mara for just doing his job.There seems to be a lot of nasty speculation on his intentions.

      The problem is not that O’Mara is defending GZ but that occasionally he has been willing to stoop pretty low before. Asking people to donate if they would have killed Trayvon, too, was not really necessary. Neither was trying to smear witness 9 with his lies.

      Sure, he can hide behind the fact that you never know what could be relevant. But if I look at the probability that Trayvon’s middle school report cards and tardiness records will make a legitimate difference in court on one hand and on the other hand at the way he is playing to his dwindling peanut gallery full of potential donors, then I have my doubts.

      • Xena says:

        @PYorck. GZ’s fans are already telling O’Mara how to argue once he gets Trayvon’s records. Essentially, it boils down to Trayvon being guilty of crime before he was born because he was born to bad parents.

      • Malisha says:

        O’Mara got into a bad spot because he seemed to be part of the dishonesty about the money for the bail. He then stood there with his face hanging out while his client told Hannity that he was not sorry he got out of the car, and NOT sorry he had a loaded GUN on him and worse, that he wouldn’t have changed anything that night, building up to the idiotic and offensive crescendo about God’s plan. Now, whatever O’Mara does, even if it is well within the proper work of a defense lawyer, he looks bad. He just LOOKS BAD and if he thinks he’s helping his client LOOK GOOD I think he’s halfway as delusional as the Zimbots are.

    • Two sides to a story says:

      If you’d followed the GZLC FB daily during its existence, I think it would be pretty clear to you how the defense is rolling this way and that, trying to keep GZ supporter donations rolling in.

      GZLC stated that not being able to post things on FB without opening comments was the reason they closed their FB site. Many threads erupted into flame wars between GZ and TM supporters and had to be deleted – this was likely one of the primary reasons to drop the site. If you observed how the threads were moderated, especially around the time of the Hannity interview when donations were dropping, the catering to potential donors was obvious. Suddenly anyone opposing GZ or the defense became a troll when there was little, whereas when donations were plentiful, the discussions were more open and lively.

      The GZLC FB site was also a window that allowed a little peek into the mind of the defense.

  24. PYorck says:

    Are there any checks on the ability of the defense to use whatever dirt they find outside of official evidence?

    I am a little worried that they might find something unrelated and inadmissable and use that to promote the overall thug narrative.

    Honestly, if you make it through your teenage years without ever breaking the law then you have done it wrong. However until very recently most of the things you did and said never left a paper trail.

    • rachael says:

      I agree PYorck. And the reason it really makes me angry is because there is such a HUGE difference between 17 and 28. Kids do really stupid stuff in high school, including on the internet – but most people understand they are kids and by the time they are 28, have changed.

      I saw something on one of the “other” sites saying something stupid about how they could tell that Zimmerman was used to wearing suits because of how he unbottoned them when he sat down or some such thing, which was more than they could say for Trayvon.

      For crying out loud!!! What a totally stupid thing to say. How many 17 year olds go around dressed in suits. Do you really think GZ wore suits when he was 17? But by the time they are 28, many of them do end up with jobs where they have to wear a suit to work every day. There is a HUGE difference.

      How can people be SO stupid???!!!!

      Sure, a kid might have a fight or two in Jr. high or high school. But by the time they are 28, they should be long in the past – like way back in high school.

      Like Xena, I know I’m getting caught up in the emotionality of it, but I refuse to give into it. I know that it is the job of the defense to try in any way it can to discredit Trayvon – it is their job, and I don’t believe it is personal on their part (though the followers of the zim don’t get that and will use it only to fuel their fire of violent hate rhetoric – which they should have enough sense to realize is going to be what bites them in the butt). It is sad, it is sick, but that is the job of the defense. We can’t get emotional about it and become like the followers of the zim. We have to have clear heads, understand what they are doing and stay above it and see to it that justice for Trayvon prevails.

      • Xena says:

        @Rachael. The job of the defense is to defend the client. What O’Mara is doing is raising a defense of a child sexual abuser or rapist by attempting to dig for dirt on the victim in effort to shame the victim and/or the victim’s family into becoming passive. It’s because I’ve read the comments of GZ’s fans going back months that I suspect O’Mara is dancing to their music. That causes me to lose respect for him.

        So O’Mara wants something that will support GZ’s story that Trayvon threw the first punch? Let’s “agree quickly with thine adversary.” How about this. After saying he had no problem, rather than turn his back and walk away, GZ stood there and began patting his pockets on his right-side where he also had his gun. Provocation? Can’t outrun a bullet so it’s better to try and knock the creepy guy’s lights out.

        This is what I see in O’Mara’s latest actions. Every parent will be required to advise their child(ren) to not look around when walking home. If they look around and see anyone following them, don’t skip away. That will give adult men reason to say they were up to no good.

        Every parent in America will be required to advise their child(ren) to submit to creepy looking men with shaved heads if they are followed by them, rather than screaming, scratching, kicking when the creep catches up with them. That creep can then kill them where they stand and claim self-defense because they were scratched and kicked.

        Rather than schools suspending students, why not allow them to have a section in the school with bars and lock the students up inside 24/7 for the duration of the suspension, because being suspended and walking home on a NON-SCHOOL night means that you can be killed and the suspension used against you in a court of law to justify the taking of your life.

      • Rachael says:

        Xena, yes, O’Mara’s job is to defend his client. He can’t, so this is what he is resorting to. He is trying to find anything he can to discredit Trayvon because he has no defense for his client. I undetstand what you are saying, totally. I’m a parent too and I’ve been crying 3 days straight now and pretty much every day when I think of this case, but don’t fall for his garbage. He knows he has nothing else, but this approach is going to fail. Believe me, ypu are not the only one sickened by his antics and honest reasonable people sitting on the fence will see it for what it is. He has alrwady said he doesn’t know if there is anything, but he just wants to make it ugly, and people are not going to stand for it. He is not helping his client by what he is doing and it is going to turn people off. He is just doing his job, but the way he is going about it is just not going to work.

        • Hold on. If there is evidence that Trayvon was an aggressive bully, he is permitted to introduce a conclusory statement to that effect under the rules evidence and refer to it in summation in support of an argument that Trayvon was the aggressor. Therefore, he has a duty to find out if such evidence exists.

          Whether he decides to use it, if it does exist, is yet another question.

          If he does use it, he opens the door allowing the prosecution to introduce the same sort of character evidence about Zimmerman and we know that evidence exists.

      • Xena says:

        Sorry Professor. Of course, I don’t think O’Mara would want to open that can of worms subjecting GZ’s background to be presented in court. However, I didn’t think he would stand in court at a bond hearing and say that Trayvon is responsible for his own death. Neither did I expect for O’Mara to attempt a backdoor approach to let GZ take the stand to address the judge without being cross-examined. The way that I’ve watched O’Mara dance to the music of financial donors, they will have him to argue that if 6 yr old Trayvon put gum under his desk that it means he would grow up to be a thug.

  25. Malisha says:

    I was riding on a bus and somehow the Zimmerman case came up in casual conversation with a woman sitting next to me. White, middle class (the classy bus from DC to NY), advanced university degree, mother was RN father was lawyer, and here was her take on the case: “I think a wannabe thug met up with a wannabe cop and it turned out badly.”

    I patiently and calmly (Socratic method) asked her about the general idea that it would be OK for wannabe cops to kill wannabe thugs, while carefully avoiding challenging her view of the facts (that George Zimmerman was not a bad person, that Trayvon Martin probably was, and that George just had to defend himself on a dark night). At the end of the bus ride I am sure that if she were on the jury, she’d have convicted George Zimmerman of Murder-2. She wouldn’t move up to Murder-1, though — I was just fishing, using her as an experiment, in my various suggestions.

    It was an interesting four hour trip. A good prosecutor will have a lot more to work with than I had and more facts, too. I don’t think George Zimmerman is getting off.

    • Good for you!

      I’ll bet you were relentless.

    • EveryoneIsEntitledToTheirOpinion says:

      Can you clarify in detail your approach?

      • Malisha says:

        Sure. I started off not challenging her assumptions. I asked her to consider Trayvon a “wannabe thug who had no gun on him” and to consider George a “wannabe cop who had a loaded gun on him.” She agreed.

        Then I suggested that we just presume George WAS a cop, but off duty. Just “arguendo.” She liked that I used the word “arguendo” because it gave her some respect for me. So she listened with some measure of respect.

        Then I said, “So George sees a guy he thinks looks suspicious. He is not on duty so he calls it in rather than going off on his own, and he calls non-emergency. The guys there say they’ll take care of it. But he gets out of the car anyway. Right away, he’s in danger of getting himself a reprimand at the Department, because he’s off-duty and if something goes wrong, the Dept. may be liable for something that shouldn’t have happened. THere was no emergency for him to jump into because he acknowledged that by calling NEN rather than 911, and by not saying “emergency” on the phone call.”

        A little light goes on in the woman’s face. OK, she says.

        Then I said, “Now let’s switch over to the wannabe thug. He’s walking along thinking, ‘I’m hot stuff, I’m a street thug, I’m scary dangerous, what can I do to increase my stature as a baaaaaaad gangsta, fuckin’-A!” She laughs. I take it down a peg, “Or maybe he’s just walkin’ along talking to his girl and he wants to impress HER how cool he is so he says, ‘some white guy is following me; he thinks he’s tough, I’ll show HIM!”

        Little frown appears on her face. OK, she says.

        On and on, and with lots of interludes to talk about the world in general and so forth, I build the scene:

        George is getting madder and madder that he can’t “bring in” Trayvon.

        Trayvon is getting more and more into his false pride about being a tough guy who can show this white guy (who he does not realize is an off-duty cop because George has not told him so) not to fuck witt boyz from de hood like HIM. I crank it up.

        “Then,” I say, “George gives up on his fantasy and heads back to the truck, but Trayvon cannot give up on HIS fantasy so he rushes up and confronts George even though George didn’t confront him first…

        And he breaks his nose,
        and throws him down on the ground and “mounts him”
        and slams his head onto the sidewalk
        and tells him, “you’re gonna die tonight motherfucker”
        and then George’s jacket slides up and Trayvon sees the gun
        and finally George is able to pull out his gun and shoot Trayvon.

        Remember, George is an off-duty cop.

        He has to now: turn in his gun and badge until there is an IA investigation;
        explain why he followed
        face the music as the public hears an off-duty cop killed an unarmed kid whose only crime was that he was a “wannabe thug” —

        She gets it.
        She says, “a copy wouldn’t have done any of that.”
        I say, “Neither would a wannabe thug.”

    • camanokat says:

      You are awesome.

  26. wisenupoet says:

    Do minors not have protection under the law…
    Does a parents right to seek justice & protection for there unarmed deceased child go unseen…
    Does Trey 21 yr old brother who looks like him all baby faced and child like looks resemble a thug…

    My heart bleeds for this family and many like them who have to sit by defenseless while there child’s “admitted killer” drags the victims name through the mud and attempts to decapitate his character…

    1 Corinthians 13:11
    When I was a child, I used to speak like a child, think like a child, reason like a child; when I became a man, I did away with childish things.

    Maybe Omar and Zimmerman should read and apply …
    Trayvon(17)
    Zimmerman (28)
    Social media,Daycare,& Pre-K records has no bearing to the night in question…
    Justice for Trayvon

  27. Xena says:

    Looks as if O’Mara may have a difficult time getting info from Twitter and Facebook. The following from the Miami Herald:

    “The defense could face resistance from Twitter and Facebook.

    Twitter is currently in litigation with the New York Police Department over a subpoena for the account records of an Occupy Wall Street protester. Twitter has refused to turn over the account information, and asked an appellate court to stay a lower court’s order.

    Twitter spokeswoman Carolyn Penner declined to answer questions about the company’s subpoena policy.

    A Facebook spokeswoman said the company “adheres to applicable laws” and cited company guidelines, which suggest that user content is only turned over in response to a law enforcement search warrant.

    The Facebook guidelines also say that if the account was deleted, the company would no longer be able to access it. Trayvon’s account is no longer active, but it’s unclear whether it was deactivated or deleted.”

    http://www.miamiherald.com/2012/09/09/2994307_p2/zimmerman-defense-looking-for.html

    • bettykath says:

      “Trayvon’s account is no loger active but it’s unclear whether it was deactivated or deleted.”

      I would expect that if it was deactivated or deleted prior to GZ’s arrest (and for how long after?) that it wouldn’t be available. But to delete it now, after the subpoena warning, would that be tampering with evidence?

      • Xena says:

        Deleting it now may very well cause problems. What concerns me is that fake accounts were opened, and other accounts with the same name were mistaken for Trayvon’s. Also, a White Supremacist admitted to hacking into Trayvon’s email. Some who have watched that subject say that purported contents have changed in time, dates changed, etc.

  28. Xena says:

    “I understand and sympathize with his parent’s concern that the defense, which has exhibited a focused intent on trying its case in the media, will use the information it finds, no matter how innocuous, to assassinate Martin’s character.”

    Professor, I posted a blog page about this yesterday. What O’Mara is doing is communicating much concern to parents across America. It means that if their child spilled milk in kindergarten, that will justify killing that child 12 yrs later for defending themselves against a grown man following them.

    Trayvon cannot be cross-examined, so my question is, can the State object to any info used by O’Mara that interprets Trayvon’s entries on his social media?

    • Evidence of a relevant character trait is admissible, but not any specific acts of that sort of conduct. As far as I can tell, the only possible relevant trait that the defense could use would be if Trayvon was known to engage in aggressive and assaultive bullying behavior.

      I don’t believe any such evidence exists. Nevertheless, they can look for it, subject to privacy laws. One way to respect privacy while giving the defense what the rules of evidence permit it to introduce into evidence would be to use the in camera process to screen the material. If the judge or a special master appointed by the judge finds something, it can be turned over.

      If something is discovered and turned over, however, the prosecution can introduce the same type of character trait evidence regarding Zimmerman. We know that’s out there, so the defense would have to think long and hard about the consequences of introducing any bad character trait evidence about Trayvon, assuming any exists.

      Regardless of how that plays out, the prosecution, however, can introduce evidence that Trayvon was peaceful and non-violent to show that he was not the aggressor.

      I believe there is plenty of evidence that he was peaceful and non-violent.

      In the end, I don’t think O’Mara will find anything that will be admissible, but he will certainly infuriate a lot of people shaking the tree in hopes of finding something.

      • Xena says:

        Professor. I suppose that I’m getting a bit too emotional to focus on court rules. You see, I’m a parent and already infuriated that O’Mara would go on a fishing expedition of a dead child.

        • I know. I understand why you feel the way you do. I’m just tryin’ to calm everybody down. These are typical lawyer games and one of the reasons I decided that I didn’t want to play them anymore.

          Think of the rule as a barrier at the end of the road that he cannot climb.

          Using the in camera process would keep all of the inadmissible information in the various files private so the treehouse gang can’t play with it.

          That’s why I suggested it.

  29. logi says:

    What I would like to see is the social media of the jurors.

    • Mike says:

      That was my thoughts too,If any of the possable jurors made comments on the case can they still be considered to be on a jury.

    • gblock says:

      Doesn’t sound like a good idea to me. Can you imagine how hard it would be to get people for jury duty if it might mean having their social media comments publicized? I can see having the lawyers examine them as part of the jury selection process in some cases, though.

  30. William Walton says:

    Another problem I have is that the defense wants to subpeona TM’s school records but wants the court to scruntinize GZ’s medical records. My opinion is that GZ’s medical records are important to this case and should be made available in their entirety to the prosecution. (a) was GZ diagonosed with a mental disorder and (b) if so, was GZ prescribed medication for this mental disorder? I grew up with a Dad who was an M.D. and his comment always was that he could write a script for medication and it was up to the individual to follow the orders for that script. Now then, if GZ was diagnosed with a mental disorder how did he obtain a permit to carry a firearm? Secondly, if GZ was diagnosed with a mental disorder why then did the gated complex allow him to become watch captain and carry a firearm? The more I read, the more bizare this case becomes. Keep in mind that I am not a legal expert but only a scientist.

    • gblock says:

      I also believe that GZ’s medical records are important. Unfortunately, we will probably never know the answers to some of the most important questions: Had GZ been taking the appropriate dose of his medications? Where they at an appropriate level in his bloodstream that evening? Had he been drinking anything alcoholic that evening?

      In answer to your questions, his eligibility to carry a firearm would probably depend on the nature and seriousness of his mental disorder. Schizophrenia probably would exclude him from obtaining a permit; ADHD or mild depression probably would not.

      Neighborhood Watch tends to be a rather informal organization and is not run by the management of the complex. They would have nothing to say about whether someone was chosen as watch captain. (Neighborhood Watch groups don’t always have a watch captain or assigned watch times – I’m not sure how typical it is to have them.) It is unclear whether GZ’s leadership role was supposed to include being a watch captain, although it looks like he may have believed it did. In addition, it is a specific part of the Neighborhood Watch rules or guidelines that members NOT carry weapons or attempt to deal with suspicious persons themselves – they are supposed to observe and report ONLY. GZ was specifically violating the Neighborhood Watch rules by his actions.

  31. Tzar says:

    Trayvon had every right to throw the first punch while standing his ground

    • I believe the jury will conclude that Zimmerman’s behavior by following Martin, particularly after he got out of his truck and followed him on foot without identifying himself, made him the aggressor.

      Yes, that means Martin was entitled to use force to defend himself.

      • Dennis says:

        I agree. If the jury believes that Zimmerman was the aggressor and that Martin was acting in self-defense, I don’t think it would be possible for them to acquit him.

        I have a question for you if you don’t mind. Is the witness/testimony from DeeDee considered “hearsay” and what are the laws regarding “hearsay” evidence in Florida? The jurors of the Peterson case said that type of evidence was critical to their conviction, and if Drew’s Law didn’t exist he would have walked free.

        • You asked:

          “I have a question for you if you don’t mind. Is the witness/testimony from DeeDee considered “hearsay” and what are the laws regarding “hearsay” evidence in Florida? The jurors of the Peterson case said that type of evidence was critical to their conviction, and if Drew’s Law didn’t exist he would have walked free.”

          Most of the relevant things Trayvon said to DeeDee should be admissible under the present sense impression and excited utterance exceptions to the hearsay rule because he was describing an emotionally distressing event to her while under the influence of the event. The rest should come in as non-hearsay since it will not be offered to prove the truth of the matter asserted in the statement. Instead, it will be offered to show his state of mind or some other factor. Should not be too difficult for a good trial lawyer to navigate through the hearsay rule in that situation.

      • William Walton says:

        I agree. Pursuing the degree in Chemistry and Chemical Engineering at the same time allowed me to take elective courses which I did in psycology. If one looks at what a rational person would do in this situation, it would be this. Call 911, wait in your vehicle until the police arrive, and let the police handle the situation. A rational person would immediately come to the conclusion that there was no need to become intimately involved. Therefore it is hoped that the jury will come to the conclusion that CZ was not operating as a rational persons but had a vindata that he had to fulfill.

    • princss6 says:

      I’m still not convinced Trayvon punched him…the forensics are unclear on this point

      • Bill Taylor says:

        to me the forensics are 100% clear, zimmerman claims martin lunched him over 25 times in the face with his fists, but the forensics say Martin never threw even one punch……there is no way Martin could have hit him 25 times, slammed his head onto concrete repeatedly and then tried to smother him with both hands and not have his hands COVERED with zimmermans dna…….that is where zimmerman loses this case he was told his life had to be in danger to justify the shooting and made up a story to make that claim BUT again none of the physical evidence backs such a claim, and no reasonable person could conclude that this UNarmed teen decided out of the blue i am going to try to murder this guy with my bare hands…..common SENSE

        • princss6 says:

          I don’t disagree with you…it is clear to me but it isn’t clear how this will be presented in court and what type of experts will be used to rebutt it.

          But you raise an interesting point. MOM is all but admitting that the forensics is not in his corner.

          You said:

          “…that is where zimmerman loses this case he was told his life had to be in danger to justify the shooting…”

          And thus the witch hunt to find something in Trayvon’s background to support that he tried to kill GZ on that night because the forensics damn sure does not support it.

      • Exactly Princss. I don’t know how O’Mara is going to get beyond forensics in this case. This type of fishing expedition is deplorable. I hope that this get’s shut down. Also, Zimmy social media footprint isn’t clean. OMara better be careful what he wishes for.

        • princss6 says:

          GZ’s, SZ’s was scheming on FB and we all know the nastiness that emanated from Frank Taaffe’s THREE twitter accounts.

          He is essentially trying to get the court to sanction all the nonsense the nuthouse has been posting for months. He wants the court to allow him to give their off the wall theories to the media as legitimate.

          • Their off-the-wall theories are not admissible. The rules of evidence don’t allow it.

          • princss6 says:

            Right. But they can still be given to the media or posted on their website as discovery even though not admissible in court. Based on his quotes, this is exactly what he plans to do…gin up the base to open their pockets by dogwhistling based on the meandering tweets (some supposedly hacked) of a 17 year old.

          • Nope. The Court or the Special Master appointed by the Court would review the documents and only turn over relevant and admissible documents, assuming any are found. I doubt any relevant and admissible documents would be found, so the defense would not have anything to post on it site.

            If a document contains relevant and admissible evidence, I believe state law may still exempt it from being made public.

            For example, I believe the prosecution released Zimmerman’s school records by mistake, or at least claimed it was a mistake.

          • princss6 says:

            Let’s hope but I’m not confident the special master will be appointed. As it stands today, this is MOM’s plan.

          • Wouldn’t be the first time someone didn’t take my advice 🙂

          • princss6 says:

            At what point in the process is that usually done? The notice to parties has been out there for a few days. The school district indicated they will turn over the records. Like you, I would like to see the Special Master, appointed but I just see the clock running out before MOM gets his hands on those files….

      • bettykath says:

        Rules of evidence don’t allow our off-the-wall theories either Oh, right, ours aren’t off-the-wall. : )

      • Mirre says:

        Forensics doesn’t back up Zimmerman’s claims and neither do his injuries. I think the best approach for the prosecution to handle Zimmerman’s “injuries”, is to have a medical expert on the stand and ask the expert whether his injuries are consistent with a list of alternative reasons that may have caused the injuries, without attempting to proof one specifically, and end the questioning with asking if the injuries are consistent with Zimmerman’s claims.

  32. jd says:

    Fishing expedition… this will all be cut short by a prudent judge, I predict. And I agree it’s to appease the dwindling list of potential donors.

    Time will tell. Thanks Fred for the great commentary and informed explanations.

    It would be interesting to see if the internet companies roll over for a subpoena or try to fight for the privacy of their users. This could have a huge economic impact on them if people realize that their supposedly private info is up for grabs to anyone who cares to file a subpoena for it on dubious rationale.

  33. DSal says:

    Appointing a Special Master to handle discovery seems unnecessary at this point. There hasn’t been any issues with the State’s responsibility to provide discovery and the defense’s likely subpoenas are not uncommon. I don’t see the judge appointing a Special Master now or in the future.

  34. Will they have to authenticate Trayvon’s social media presence or just use the “screen captures” the treenutz and like sites have posted?

    • Xena says:

      O’Mara will have to get the information from the site owner, and whoever provides the info has to swear in an affidavit that it’s authentic. I don’t know how the email will be handled since a White Supremacist reported hacking into Trayvon’s email account.

  35. itsallboutmeash says:

    It looks like he is threatening every state witness with releasing their social network results……..

    “This is how you defend someone charged with second-degree murder, a charge that presumes ill will and hate,” O’Mara said. “If that’s the way they are charging it, we have to know as much as we can about everybody involved — every state witness. We’ll do everything we can to get that out there. It’s not character assassination; it’s investigation.”

    Read more here: http://www.miamiherald.com/2012/09/09/2994307_p2/zimmerman-defense-looking-for.html#storylink=cpy

    • Sounds like witness intimidation to me but, then again, I’m not a lawyer.

    • Xena says:

      HA!! State witnesses include Mark Osterman and Frank Taaffe who are suppose to be GZ supporters — yeah — support that he profiled Trayvon. Other state witnesses include those involved due to their profession, such as the paramedics. O’Mara’s desperation is not putting him in a good light. In the alternative, he is trying to force the State to offer GZ a plea before the immunity hearing; i.e., “If that’s the way they are charging it …”

    • Malisha says:

      Frankly, their defense witnesses have much more “spotty” pasts and less credibility in general than any of the prosecution witnesses IMHO. This should be fun.

      • Two sides to a story says:

        The defense relishes the simple appearance of a witch hunt as high theatre and revenge for the release of GZs school records. It seems reckless for them to open that can of worms in court, knowing what we do about all the spotty pasts of GZ and associates.

        Professor, is there any legal recourse for the accidental release of GZs school records – I recall nary an apology from the prosecution about this. Do you think it was truly an accident? I can see why the defense and GZ supporters are upset about it.

  36. Patricia says:

    Because Zimmerman supporters (who are the cash funnel to pay O’Mara’s fees, a funnel that can only be kept open if O’Mara follows their wishes) have actively advocated that some “error” happen in O’Mara’s office that RELEASES Trayvon’s private information to the media — this should MANDATE a Special Master to review discovery documents. Foil any opportunity for the Zimmerman ravists to reconstruct documents into lies against Trayvon and his family!

    Good points re: overburdening the judge and possibly prejudicing her. Appointing a Special Master removes those concerns.

    • Xena says:

      @Patricia. You are correct about GZ fans’ suggestions that Trayvon’s private information gets “accidentally” released to the public. That’s because GZ’s school records were accidentally released to the public. It’s tit for tat with them. They want to put Trayvon on trial.

    • William Walton says:

      Patricia, I observe from your blogs that you are not a critical thinker. Rather than quoting what is written in the newspaper, the science comes in to try and explain what is missing from the overall picture. Thus, science tries to hypothisize what could have happened to explain what is missing in the chain of events and finally will come to the conclusion of what actually happened.

  37. Is it true O’Mara is also subpoening State witness social media presence too? Are they allowed to do that or would it be considered witness intimidation?

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