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.