Is Mark O’Mara Cutting His Losses and Heading for an Exit?

Thursday, January 31, 2013

Best wishes to all of you who live in the South and Midwest. A hellish storm peppered with tornadoes, thunderstorms, torrential rain and golf-ball sized hail passed through this large area as a cold front with temperatures below freezing danced with a dense area of warmer air from the gulf. I live in western Kentucky where the temperature now is 32 degrees. Tuesday afternoon and evening the temperature reached 70 degrees. Yesterday featured wild windstorms, rain, flooding and decreasing temperatures. That made for an interesting motorcycle ride to the store late yesterday afternoon. Fortunately, we are OK.

Seventy degree temperatures, large menacing black clouds punctuated with lightning, tornadoes and 40 degree temperature swings do not belong in January.

Or February.

I hope everyone is safe and in good spirits this morning.

Xena gets the credit for inspiring me to write this article about the $40 K that O’Mara spent to upgrade his office.

She said:

” The $40,000 of equipment and office space should be considered an asset to O’Mara’s firm. If I had a lawyer who charged me to expand and equip his office, I would first think that he isn’t prepared to take on my case. Also, if I had a lawyer who thought it was more important to thugify the person I’m charged with murdering rather than ALREADY getting experts lined up in ballistics and forensics, I would think he is not experienced in criminal defense.

IMO, what O’Mara and West are doing is trying to divert the murder 2 case into some other type of case that does not defend GZ at all but rather, makes excuses for him.”

This is my response:

When I worked on the Green River Killer case in Seattle (we had a team of 8 lawyers, 5 investigators, 20 experts and and numerous support staff), we hired a software firm to code over a million pages of discovery stored in an airplane hanger that the prosecution converted into electronic images using scanners. They also imaged over a million exhibits.

An electronic database filled with millions of images is worthless, unless you can search the database and find the information you need. In effect, you need to develop a cover sheet for each document or exhibit in the database and enter information on that cover sheet that tags the document or exhibit with search terms that you will subsequently use to find the cover sheet and its attached document. The process of tagging each document or exhibit is called coding the discovery.

The firm that we retained, hired a team of 36 lawyers who, for one reason or another were not practicing law. Retired, semi-retired and women on maternity leave made up the team. We provided the search terms and they tagged the documents and exhibits. The job took six months to complete.

The firm provided the software program we used to search that immense database. The whole case and the program to search it was stored on a server at their office. We accessed it through a secure internet-tunnel connection. They also provided a secure email program that we used to communicate with each other regarding the case.

My primary responsibilities were DNA and forensics. I also played a major role in developing our coding system.

Although our setup was likely substantially more sophisticated than whatever setup West, O’Mara and their 6 interns are using, I think they are doing something similar to what we did, but on a much smaller scale. The process is expensive, but necessary in big paper-intensive cases.

I question whether all of that high-tech stuff is really necessary in Trayvon’s case, but I understand why they would have decided to modernize the discovery-organization process by converting everything into an electronic searchable database of images. I would too, if I had the money.

O’Mara seems to be wasting an enormous amount of time running his mouth to the media and trying his case in the court of public opinion. He appears to be obsessively preoccupied with a racist right-wing-inspired snipe hunt for evidence of non-existing bad acts committed by Trayvon and his girlfriend, Dee Dee. Seems like almost everyday there is a new nonsensical rumor coming out of tree-house gang that winds him up tight and keeps him going and going like the Eveready Bunny.

I have no doubt that the snipe hunt is a waste of time and energy because the evidence he is searching for exists only in the fevered imaginations of creepy people like the client, the client’s family and their frantic supporters. They seem not to realize that each new phantasmagorical rumor is a distraction rather than an aid. Meanwhile, O’Mara seems oblivious to how stupid he looks when each new rumor fails to pan out.

He has had more than 6 months to find out if Trayvon Martin was an aggressive martial artist who liked to beat the crap out of other people for no apparent reason while uttering outdated ghetto slang from 20-year-old movies.

I keep asking myself when will he finally tire of playing the role of a subservient dog being wagged by its tail?

I am going to repeat something that I said in a comment yesterday:

“I think O’Mara is attempting to cut his losses and get out of this thing gracefully without screaming and running as fast as he can toward the exits with his hair on fire.

At this point, I think it would make more sense to close the account to prevent more people from basically being defrauded by having their money pay for unnecessary security and create fertilizer via the defendant’s alimentary canal instead of paying for needed defense services.

Yes, settle up with AIS, close the account, enter the IFP Order, let O’Mara and West out with an admonishment to run a few laps on the beads and go forth and sin no more, and appoint new counsel at public expense. Then set a new hearing in a week or two for confirmation of new counsel.

If the defendant demands security, send him to jail. He will be safe there. That should stop his complaining.

If he objects to the GPS device on the ground that he cannot afford it, revoke his bond and take him into custody. That should stop his complaining.”

The Defendant Should Claim He is Indigent in the Trayvon Martin Murder Case

Wednesday, January 30, 2013

I write today to comment on the defense team’s financial situation in the Trayvon Martin murder case. I wrote about this recently in What Happens if the Defendant Claims Indigence and his Lawyers Ask to Withdraw?

As everyone here knows, internet donors have contributed more than $200,000 to the defendant for his defense costs via Paypal and that money has been deposited into a trust account that is being managed by an independent third-party trustee. I believe approximately $200,000 has been paid for the defendant’s and his wife’s living and security expenses.

The defendant’s two lawyers, Mark O’Mara and Don West, claim they are working pro bono. This means they are not billing for the time they spend working on the case.

This does not mean that they are not billing for their costs, however, which will include money spent for investigation, expert witnesses, court reporters and transcripts of depositions. These costs could exceed $100,000 before this case is done.

Associated Investigative Services (AIS) filed suit in December against Mark O’Mara, the defendant and his wife for breach of contract alleging that they had refused to pay AIS approximately $27,000 for security and investigation services rendered pursuant to a contract negotiated and agreed to by O’Mara on behalf of the defendant. O’Mara filed an answer to the complaint apparently admitting the contract, but claiming that he advised AIS in August that a trustee was managing the account and conserving funds to pay substantial anticipated defense expenses.

The failure to pay AIS necessarily raises concerns regarding the solvency of the defense trust account and the ability of the defense to pay the “substantial anticipated defense expenses” that O’Mara mentioned.

In addition to comments about the significance of the AIS lawsuit, many of you have asked whether the donations to the account are nontaxable gifts or taxable as income to the defendant. I wrote about this back in May or June and said I believed they were nontaxable gifts, but I am not an expert in tax law, so I could be mistaken.

Grey Winter Sky provided this link in a comment this morning to an article in Forbes Magazine last June that reached the same conclusion that I did. Since the decision is up to the IRS, subject to the outcome of any appeals, we could both end up wrong.

Jun quoted Wikipedia to support his conclusion that the donations are taxable income. He said,

“According to wikipedia, Fogenhats’ defense fund does not count as a gift, so he has to pay taxes

“In the United States, the gift tax is governed by Chapter 12, Subtitle B of the Internal Revenue Code. The tax is imposed by section 2501 of the Code.[2] For the purposes of taxable income, courts have defined a “gift” as the proceeds from a “detached and disinterested generosity.”

For the time being, I am going to stick with my initial opinion that the donations are nontaxable to the defendant.

(The donors may have to pay a tax, depending on the amount they donate, but that is a different issue and beyond the scope of this article.)

Regardless whether the defendant has to pay an income tax on the donations, and if he does it would be a substantial amount, I am concerned whether there is enough money in the account to pay “the substantial anticipated defense expenses.”

O’Mara recently estimated the balance in the account had dropped to around $15,000 and there is no way that that amount will cover “the substantial anticipated defense expenses” as well as the continued living and security expenses.

I suspect the civil suit against NBC was filed with the hope that NBC would settle the case quickly and the settlement amount would be added to the trust account to give some breathing room to the defense team. I doubt the case will settle because the claims against NBC and its reporters, even if true, do not establish that they caused any compensable harm to the defendant. He, and not the reporters, called Trayvon Martin a “fucking asshole” and a “fucking coon.” That is what I hear on the NEN recording and I am not alone. Therefore, that lawsuit is going nowhere.

I do not know if the defense continues to receive donations, but if they have slowed to a trickle as I imagine they have, then the defense is going to have to make a very important decision soon.

Hoping that future donations will be sufficient to pay “the substantial anticipated defense expenses” is not a viable and responsible strategy. It’s called gambling.

Sooner or later and preferably sooner rather than later, I believe the defense is going to have to claim indigency and seek an order permitting the defendant to proceed in forma pauperis. If granted, the court would appoint and compensate defense investigators and experts at substantially reduced rates.

No doubt such a move would cause an enormous loss of face for the defense, but that is infinitely more preferable than proceeding to trial without the assistance of defense investigators or experts.

Moreover, a conviction obtained without the assistance of defense investigators and experts might be reversed for ineffective assistance of counsel and that is a result that no one, except a convicted defendant, would desire.

Mark O’Mara Responds to AIS Lawsuit

Tuesday, January 29, 2013

Jeff Weiner of the Orlando Sentinel reported today that Mark O’Mara has filed his Answer to the Associated Investigative Services’s lawsuit filed against him and George and Shellie Zimmerman for breach of contract.

He says O’Mara has denied most of the factual allegations in the complaint, but:

He does, however, admit several allegations:

• That he told AIS in August that “both George and the trustee [overseeing his defense fund] are clamping down” because “we have some very large expenses for the case coming up.”

O’Mara also said “George does not have any funds presently available to him to attend to any such debt, realizing the enormity of upcoming expenses of the defense and the diminished nature of the defense fund.”

• That AIS was “unable to obtain either a signed written retainer” with O’Mara, or the “outstanding balance on the services rendered.”

• That no payments have been made to AIS by O’Mara since August.

Weiner does not indicate if O’Mara’s answer was filed on behalf of the three defendants or just himself.

It’s difficult for me to tell what is going on or to make any predictions without reading the complaint and answer.

Apparently, he is admitting that there was an oral contract and he seems to be claiming that he warned the plaintiffs that his client was out of money, but it does not appear that the services were terminated or adjusted.

That does not seem like much of a defense to me and if George and Shellie cannot pay the bill, which they cannot, then O’Mara may be stuck with the bill.

That should be extremely depressing news to a man who claims to be working pro bono.

Equally if not more depressing should be the realization that no investigators or experts are going to agree to do any work for him unless he pays them up front. Since he cannot afford to do that, he will not be able to adequately prepare for trial. Therefore, he is setting himself up for a malpractice claim in addition to this lawsuit.

Mark O’Mara has 27,000 and counting reasons to ditch the defendant as a client and the longer he waits to pull the trigger, or file for an order of indigency to proceed at public expense, the deeper the doodoo.

He needs to act and he needs to act NOW.

Featuring: LLMPapa’s New Video that Speaks for Itself

Papa with a new video that speaks for itself.

Trayvon wasn’t a punk.

Amen.

We are Having a Great Discussion Re the Trayvon Martin Case

Monday, January 28, 2013

I want to keep this short because I am enjoying and learning from the lively discussion and the opportunity to participate as the spirit moves me.

Special thanks to Whonoze for his video and I must say that I agree with his theory that the defendant approached Trayvon from the south. Not at all sure, however, that he went that far south before heading north on the dog walk toward the T.

I want to restate what I have said in the past about the difference between what the prosecution must prove beyond a reasonable doubt versus proving every conceivable detail that happened that tragic night. The defendant is the only living person who knows what happened that night and he has chosen to lie about everything except getting out of his truck and shooting Trayvon. He has no reason to lie unless telling the truth would convict him of murder. His lies demonstrate conscious awareness of guilt and a desire to avoid being found guilty. If I were a juror, that would be all I would need to know to vote guilty.

People have presented different theories regarding the unknown details, but there is no need for us to all agree on one theory. Basically, I think all of them pertain to facts that the prosecution has no obligation to prove or disprove in order to convict the defendant of second degree murder. As much as we would like to know everything that happened, we are unlikely to ever know every detail. That’s why the focus of every trial is on the elements that must be proven, which party has the burden of proof, and the definition of that burden of proof.

The burden in a criminal case is proof beyond a reasonable doubt and doubts about facts that do not need to be proven are not reasonable doubts.

We can debate whether that is a good or a bad way to determine guilt or innocence, but there is no debate regarding whether that is the way our system is designed to work.

Two Sides to a Story said,

“I also think we shouldn’t get obsessive about our particular opinion in the threads – it just fills the space with unnecessary noise. I don’t know about you, but I’d rather see a high level of data to noise rather than the other way around. I think it’s sufficient to voice one’s pet theory once in a thread and perhaps reply once or twice to communicate with another commenter, but insisting everyone see it your way over and over gets tedious. It’s OKAY if people disagree with the video and your pet theory. Perhaps when you insist on a particular viewpoint, it’s YOU that is unable to grasp another theory.”

I agree with her statement and I urge all of us not to fall into the trap of failing to see the forest for the trees.

Carry on!

Featuring: Whonoze’s Splendid Video

Sunday, January 27, 2013

Tonight we feature Whonoze narrating his splendid video that pulls the case together thoroughly debunking the defendant.

This video is awesome and well worth your time. Please watch it through from start to finish.

Caution: It begins with the shriek and the shot.

Here’s his comment introducing the video.

Speaking of evidence that will conflict with Zimmerman’s story…

After literally months in the making the “BCClist clucbhouse security footage + police call audio analysis” video is now completed and up on YouTube:

“Less is more” it ain’t. It’s over 47 minutes long. Hopefully it’s concrete and detailed in ways previous presentations have not been, and more firmly establishes the nature of some of GZ’s key falsehoods.

Fred

The Defense in the Trayvon Martin Case Should Waive the Immunity Hearing

Sunday, January 27, 2013

I write today to explain why I would not request an immunity hearing, if I were representing the defendant in the Trayvon Martin murder case.

The party with the burden of proof always has to go first and present its case before the opposing party has to introduce any evidence. Since the prosecution has the burden of proving guilt beyond a reasonable doubt in all criminal trials, it always presents its case first. In an immunity hearing, however, the defense has the burden of proving self-defense by a preponderance of the evidence. This means that it must go first and present its case before the prosecution has to present any evidence.

As a practical matter, the defendant will have to testify at the immunity hearing and claim self-defense because all of his pretrial statements are inadmissible hearsay. In other words, the defense cannot claim self-defense unless the defendant claims it and he cannot claim it unless he testifies that he killed Trayvon in self-defense.

Given the number of inconsistent and conflicting statements that he has uttered, no matter what he says during the hearing will be in conflict with something he previously stated, as well as the physical and forensic evidence.

He cannot testify unless he submits to cross examination. Therefore, he will be subject to cross examination. The prosecution will be able to confront him with all of the conflicts and inconsistencies in his pretrial statements during cross examination because they are admissions by a party opponent. He will be crucified in a harsh spotlight before a world audience and his lawyers will be helpless to stop the carnage.

And after the defense rests, the prosecution will be able to inflict further damage by introducing physical and forensic evidence to prove each and every lie he told.

After Judge Nelson denies the defense motion for an order immunizing him from criminal and civil liability, the nation and the world will know that the defendant is guilty and the trial will seem like an afterthought with a guilty verdict never in doubt.

Open Thread for Saturday, January 26, 2013

Welcome to the open thread.

We have three posts today:

1. The Defendant’s Statements will be Admissible by the Prosecution in the Trayvon Martin Murder Case;

2. Featuring: LLMPapa Delivers a Knockout Punch; and

3. Call for DNA Testing for Death Row Inmate Larry Swearingen.

Use this open thread for comment and discussion regarding other topics.

Call for DNA Testing for Death Row Inmate Larry Swearingen

Barry Scheck is an honored friend and hero. He has issued this call, which I fully support:

Sign-on to our letter to District Attorney Brett Ligon

Larry Swearingen is scheduled to be executed by the state of Texas on February 27. He has always maintained his innocence of the 1998 murder of a 19-year-old college student and has been requesting DNA testing of crime scene evidence that could exonerate him for years (read more). In 2011, the Texas Legislature specifically amended their DNA testing statute to address shortcomings in the law that had been used to deny Swearingen the ability to test evidence.

With his execution date looming, there is simply no room for doubt and no reason not to test this evidence. Sign-on to our letter to Montgomery County District Attorney Brett Ligon asking ask him to postpone the execution and consent to DNA testing of the evidence in Larry Swearingen’s case.

Please go to the Innocence Project website to fill out and send your letter requesting DNA testing.

Thank you,

Fred

The Defendant’s Statements will be Admissible by the Prosecution in the Trayvon Martin Murder Case

Saturday, January 26, 2013

I predict the defendant’s statements to police will be admissible against him at his immunity hearing and his trial.

The legal test will be whether he knowingly, intelligently and voluntarily waived his rights to remain silent and submit to police interrogation without counsel present. The SCOTUS established this test in Miranda vs. Arizona, 384 U.S. 436 (1966).

The defendant gave multiple statements to police investigators. Each statement was videotaped.

Before answering any questions, he reviewed, initialed and signed the standard form acknowledging that he had been advised of his rights to remain silent and to have an attorney present while being questioned and his decision to waive those rights and submit to questioning.

There is no evidence on the videotapes that the police confronted, threatened or intimidated him in any way and they permitted him to go home after interviewing him the first night. Moreover, there is no evidence that they used any trick, lie or ruse to get him to talk. Therefore, his statements will be admissible pursuant to Miranda.

Some of you have commented that his attorneys might move to suppress his statements on the grounds that he suffered from post traumatic stress disorder (PTSD) and he had been diagnosed with attention deficit hyperactivity disorder (ADHD) for which he was taking Adderall.

These mental disorders normally do not prevent a person from knowing that police are about to question them regarding their possible guilt in committing a crime and they have a right to refuse to answer any questions or insist on having a lawyer present during questioning. So long as they understand what they are being told, they can agree to waive those rights and submit to questioning. Absent persuasive evidence to the contrary from a duly qualified mental health expert, PTSD and ADHD would not prevent a person from knowingly, intelligently and voluntarily waiving those rights.

The defense has not filed a motion to suppress the defendant’s statements and I am not expecting such a motion.

Since the prosecution will want to use the defendant’s statements to prove his guilt, you might see BDLR file a motion asking the Court to rule that he can do that. To win the motion, he will have to convince Judge Nelson that the defendant’s statements were knowingly, intelligently and voluntarily made after advice and waiver of Miranda rights. Lawyers refer to this procedure as laying a proper foundation for the admissibility of the statements.

For the reasons I have stated, I expect Judge Nelson will grant the prosecution motion. The defense either will have no objection or its objection will be overruled (i.e., denied).

Keep in mind that the prosecution can introduce any of the defendant’s statements as admissions by a party opponent, but the hearsay rule prevents the defense from introducing any of them.