FOX News pimps for defendant in Trayvon Martin murder case

February 28, 2013

Thursday, February 28, 2013

The beat goes on as Mark O’Mara continues to shamelessly pimp for his client.

Edmund DeMarche of Fox News writes:

George Zimmerman, the Florida man who fatally shot an unarmed Florida teenager last year, wears a disguise and a bulletproof vest whenever he is in public, his attorney said.

“He never feels safe,” Mark O’Mara, his lawyer, told FoxNews.com. “His security has been cut and he stays inside his secure location all day long due to threats.”

As a result of the confinement, Zimmerman’s health has taken a turn for the worse, O’Mara said. He gained about 100 pounds in six months and is stressed about the threats and his upcoming murder trial, which is set to begin on June 10.

“If I was confined to four rooms all day I bet I’d gain a lot of weight, too,” O’Mara said.

Next time you see the Michelin Man wearing sunglasses while standing in line at the Donut Shop, be sure to tap him on the shoulder and ask him for his autograph. Maybe he will give it to you for free, although I would not bet the ranch.

On second thought, we don’t need you to do that because this Afro Peruvian descendant of African kings might pull out a gun and blow away your heart.

Now prepare yourself for this fine example of journalism at its finest:

Last year, Zimmerman spotted Trayvon Martin walking through his neighborhood, a gated community, in Sanford, Fla. Martin was walking back to a house he was staying at in the community after a trip to a convenience store.

Zimmerman started to follow him because he thought he looked suspicious. Despite a police dispatcher telling him “you don’t have to do that,” Zimmerman got out of his truck to pursue Martin.

They got into a fight and Martin was shot.

You gotta love that integrity.

But wait, there’s more:

O’Mara said he talks with Zimmerman every day. He said the couple relies on donations to survive since neither one can hold down a job.

He said Zimmerman, who previously aspired to be a judge, looks forward to the trial to begin, but has been disenfranchised about the legal proceedings thus far.

To be sure, even if his client is acquitted, O’Mara said he will likely never feel safe in his hometown or Florida.

“He’d have to go somewhere where nobody knows him,” O’Mara said.

So, O’Mara and his client are a “couple” and poor George is wearing bulletproof vests and disguises while he steadily eats himself to death because he doesn’t get to vote on the outcome of his trial.

Excuse me, while I cry me a river of tears.

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CNN article promotes racist description of Trayvon Martin case

February 27, 2013

Wednesday, February 27, 2013

Thanks to all who participated in yesterday’s memorial to Trayvon Martin.

I write today to express disgust and dismay regarding this excuse for journalism by Steve Almasy of CNN, Zimmerman’s lawyer works to dispel racial overtones in Trayvon Martin case.

The focus of the piece is Mark O’Mara’s “struggle” to get people to pay attention to the evidence instead of racism.

Whatever the outcome of the Trayvon Martin case, it will be viewed less as a determination of the shooter’s guilt or innocence and more as a victory or loss for civil rights, George Zimmerman’s lawyer fears.

Mark O’Mara said he has been busy trying to dispel the racial overtones in the case by getting out more evidence about his client.

Thereafter, we get the usual he-said-she-said description of the case interspersed with O’Mara’s unchallenged mischaracterizations of the evidence followed up with this description of Benjamin Crump as a rabble rousing troublemaker pushing the race card.

O’Mara indicated at trial he will dissect the recording of Zimmerman’s 911 call and point to evidence of the wounds Zimmerman said he suffered that night.

“I believe, you know, again, the evidence is what it is and that’s for a jury to determine,” O’Mara said. “But a close reading or looking at that tape and all the evidence that followed, particularly George’s injuries and Trayvon’s lack of injuries but for the fatal gunshot, suggest that George did not begin the fight, did not continue the fight and actually was the victim of the attack rather than the other way around.”

But a lawyer for the Martins said the fight against “senseless gun violence” will continue.

“He went home and slept in his bed the night he killed Trayvon,” attorney Benjamin Crump said. “And that wasn’t equal justice.”

Crump then led a chant of “Hoodies up! Hoodies up!” at the vigil.

This false concoction is presented with a cherry on top in the form of the optically distorted and likely photoshopped digital photo of the defendant seated in the back seat of a patrol vehicle with a bump on his nose and blood on his mustache. CNN has no excuse for not knowing that the photo presents a false picture because the police photos taken at the station house a few hours later with a much better camera under good lighting show a barely visible injury with little or no swelling or distortion to the shape of the nose.

As all of us know, despite conceding that his client was the aggressor, O’Mara has been shoving his demonstrably false “bloody” photograph in front of every camera he can find in pursuit of his easy-to-disprove false narrative that the peaceful and nonviolent Trayvon for no apparent reason attacked and attempted to kill the defendant with his bare hands in the middle of his phone conversation with his girlfriend after successfully running away from the defendant who had been stalking him in a vehicle and then on foot contrary to a police dispatcher’s warning.

The simple truth is this defendant has no defense and the only mystery in this case is why anyone believes that the he did not hunt, confront, and murder Trayvon Martin for the heinous crime of walking while Black in the rain with his hoodie up.

I said long ago and I will repeat it today:

Anyone who believes the defendant is innocent is a racist and anyone who contributes money to his defense is a stupid racist.

Let there be no mistake: Although he claims otherwise, Mark O’Mara and his client are deliberately appealing to racial hatred and fear of young Black males to literally get away with murder.

That is what this case is all about and shame on CNN for not reporting the truth.


Be At Peace Sweet Trayvon

February 26, 2013

We pause from earthly pursuits on this day, the first anniversary of your untimely death, to honor you, imagine what could have been, and pledge to make it better.

Be at peace, sweet Trayvon.

In memory of

Trayvon Benjamin Martin

2/05/1995 – 2/26/2012

Join Livestream here.


Judge Nelson Properly Denied the Defense Motion to Depose Benjamin Crump in Trayvon Martin Case

February 25, 2013

Monday, February 25, 2013

Good afternoon.

I write today to clear up some confusion exhibited in comments over the weekend regarding the basis for Judge Nelson’s order denying the defendant’s motion to depose Benjamin Crump, the attorney who represents Trayvon Martin’s parents, Tracy Martin and Sybrina Fulton. As all of you know, he located Witness 8, who is referred to as DD to protect her identity and privacy. She was Trayvon’s girlfriend and was talking to him when the defendant accosted and attacked Trayvon moments before shooting him to death.

Crump recorded a telephonic interview with her from his office in which she reported that Trayvon told her that he was being followed by a “creepy man” in a vehicle as he was walking home. He ran to get away from the creepy man and thought he had succeeded, but the creepy man suddenly appeared on foot and close by.

She heard the following exchange:

Trayvon: “Why are you following me for?”

Old Man: “Why are you here?”

She heard what sounded like a physical struggle.

Trayvon: Get off!

Then she lost the connection.

DD is an important witness for the prosecution because her testimony contradicts the defendant’s claim that Trayvon hunted, confronted and attacked him as he was walking back to his parked vehicle.

The defense clearly has a proper basis to depose DD and no doubt will eventually do so, since the prosecution has listed her as a Class A witness (major witness) on their witness list. The defense has delayed taking her deposition claiming that it must obtain other unspecified information prior to the deposition. For example, the defense seeks to know her address prior to the deposition.

Judge Nelson denied that request for the second time at the hearing on Friday reiterating that they can ask her that question at her deposition.

To understand why the Court denied that request, one need look no farther than the outrageous and unlawful harassment and doxing inflicted by the defendant’s supporters on the defendant’s cousin, who accused him of molesting her over an 8-year period when they were children, and two innocent girls named Dee Dee in Miami, whom they erroneously believed to have been Trayvon’s girlfriend.

The defense also seeks to depose Benjamin Crump to inquire into how he discovered who she was, how he set up the interview and how he conducted it. He has already provided that information to defense counsel in a 15-page affidavit, but they seek further inquiry.

I do not believe there is any legitimate legal issue whether Benjamin Crump is an attorney who acted in his official capacity as counsel for Trayvon’s parents to locate DD and interview her to collect and preserve information to support a potential lawsuit against the defendant for causing the wrongful death of their son as well as to support a possible murder charge against the defendant. There simply is no question that his interest in representing Trayvon’s parents is in opposition to the defendant’s interest in being granted immunity from civil and criminal prosecution and that was just as certain before the defendant was charged as it is today. Therefore, what he did to secure DD’s interview and all of his notes and research regarding it are attorney-client work product and protected from disclosure.

Judge Nelson reportedly also found that he was acting as “opposing counsel,” a finding that provides additional legal justification to shield him from submitting to a deposition since that is prohibited, subject to a few limited and inapplicable exceptions. There is no serious question that he was acting in that capacity even though no criminal charge or civil suit had been filed.

Either way I do not see a significant legal issue to appeal.

If you want to read an excellent legal argument regarding this issue, check-out Bruce Blackwell’s memorandum.

Meanwhile, trouble is brewing at the Treehouse where Sundance is calling for Don West to take over the defense. According to his open letter to Mr. West, he believes O’Mara is incompetent and DD does not exist. I do not link to that site, but Opera Carla posted a copy of the letter in the comments thread to my Many Blessings post.


Many Blessings to Everyone

February 24, 2013

Sunday, February 24, 2013

Good afternoon to everyone.

Thanks to all who commented regarding my post about declining civility and slipping from the high road. I wanted everyone to take a moment to consider their part in the decline and resolve to return to the high road.

Because this is an emotional case and we are a blog, I think we should feel free to express our emotions from time to time as the spirit moves us. There is, however, such a thing as getting carried away and I do not want to see the house degenerate into insults, name-calling, and attacks on each other.

This is not a war zone or a church.

I think Aussie expressed my concern with this comment:

How will “venting” your dislike/hatred do anything for Trayvon or his memory?

If name calling is your main purpose, how are you better than the “other side” who call names all day?

The two guys who first brought this up, Whonoze and unitron, almost got accused of being GZ supporters for it. But their point isn’t that they don’t want to hear poor George being called bad names. They don’t want to hear everyone here, people they’re on one side with and respect, they don’t want US engaged in that kind of name calling and hatred spewing.

It’s a matter of taking the high ground — no, of remaining on the high ground we started out on — to speak for a dead child who can’t speak for himself. And a matter of not letting feelings take over, to the detriment of looking at facts and reality.

It’s not to protect GZ from being called names, he probably deserves it. It’s to warn you against becoming a hate-spewing name-caller, you ARE better than that.

The Outhouse mob have heaps of solidarity through hatred…..is that what we should emulate here? The main solidarity here is, or used to be, support for Trayvon’s side of the story; the shared dislike or disgust with his killer was a side issue. It should stay that way.

We are a family and no useful purpose is served by calling out anyone when at one time or another everyone, including me, has crossed the line.

The line, of course, is invisible and varies according to individual perception. I suppose it’s more of a feeling than an actual line.

Freedom of expression enhances creativity. Having fun enhances learning. All life is rife with ambiguity and there is something within us that rebels against a rule.

My goal is to maintain a welcoming place where everyone feels safe to express their thoughts and feelings without fear of attack.

If anyone wants to know what I do not want this place to become, go and observe the dialogue at the CTH or HP.

Freedom of expression too often serves as an excuse to let loose our meaner instincts.

Respect for others, self-reflection, and a willingness to adjust are elegant signs of wisdom, maturity and grace. They are not signs of capitulation to authority and convention.

Respect this house for it is your house and not a junior high school playground.

Be aware that your words can wound and guard against becoming what you despise.

Resist your meaner instincts and own what you say.

This is a good place and we are better because of it.

Let’s keep it that way.

We are two days distant from the first anniversary of Trayvon’s death.

What does it mean to you?


Please Read and Comment

February 22, 2013

Friday, February 22, 2013

I have been monitoring without comment a dispute between members of this community regarding the use of unflattering characterizations of the defendant, his wife and family, and their supporters. I hoped that you all would resolve your disagreements, but you are stuck. Therefore, I am going to step in without picking a side and provide some guidance that I hope will assist all of you to settle your disagreements and refocus on Justice for Trayvon.

Although this is my blog, I am not Pharaoh and do not feel comfortable playing God. You all are good people and there is no reason that I can think of why you cannot resolve your disagreements and get back on track without causing hard feelings. To do that each side is going to have to acknowledge that the people on the other side have legitimate reasons for feeling the way they do. My take on the dispute is that no progress toward a resolution has occurred because people on both sides are focused on proving the other side is wrong.

One side believes that the defendant, his wife and family, and their supporters have demonstrated repeatedly by word and deed that they deserve to be treated with contempt. People who subscribe to this view insist that they not only have a right to express their anger and disgust, they have a duty to do so.

As one who has been viciously attacked and smeared with knowingly false allegations asserted as the truth and then repeated by sock puppets on many internet sites in the hope that the lies will acquire legitimacy by virtue of such repetition, I can say with certainty that they have no regard for the truth and no respect for anyone who disagrees with them or anyone who seeks justice for Trayvon. I have to continually struggle to keep my emotions under control because a part of me wants to retaliate and give them a reason to fear me for the rest of their lives. I am a very emotional person and I cannot deny and ignore how I feel.

I am capable of detaching, however, and when I do, I see why they have targeted me for character assassination by lie. They attack and seek to silence me because on a daily basis I expose the lies in the defendant’s statements and the weaknesses in his defense. The intensity and desperation of their attacks reflects how effective I have been. Since they have established and dedicated entire websites to spewing lies and hatred toward me, I can and do take enormous satisfaction from my accomplishments.

To me, Justice for Trayvon is about doing something to promote justice in his case. It’s not about self-validation by treating his killer, his wife and family, and their supporters with scorn and contempt. Whether the defendant and his wife have the combined intelligence of a box of rocks is not the issue. Whether they have each gained excessive weight since his arrest is not particularly noteworthy either. I know they are pathetic malcontents whose lives are going nowhere. The people who want to destroy me with lies have issues they need to deal with because their dedication to destroying good people with lies is a ticket to hell.

The other side is concerned that respectful and reasoned discussion about the evidence and the issues, which is what brought them to this site and why they remain, is degenerating. They point out that several people who ask questions and criticize others for a tendency to drift toward cliquish behavior and group-think get attacked and accused of being trolls.

I think it’s easy to judge the conduct of others when the person doing the judging is unable to understand or relate to the emotional response experienced by the person they are judging. Could the answer lie in the direction of acknowledging the validity of the emotional response while suggesting that seeking justice for Trayvon may be a more effective way of applying the energy expended on mockery and insults?

I want everyone to work through this problem to find a solution they believe in and can support.

This house will tear itself apart from the inside out if the desire for vindication precludes a mutually respectful and thoughtful discussion toward a solution that recognizes and validates the emotional reactions that lie beneath the skin.

We are here to ask questions, exchange opinions, learn new things, practice tolerance and treat each other with respect.

I am searching for a middle ground between the opposing views expressed here so that there is freedom to express righteous anger and indignation with mature restraint, tolerance and acceptance for those who occasionally get carried away, and respect for those with whom we disagree.

Finally, I hope everyone understands and accepts that sooner or later, despite best intentions or maybe because of them, each one of us is going to cross a boundary and hurt another person’s feelings or piss them off. Endeavor to cut them some slack and be as willing to forgive them their trespass as you would like them to forgive yours.

After all, since sinning is our birthright, there never is a time better than now to accept what we are, resolve to learn by our mistakes, and forgive others as we would like to be forgiven.

George Zimmerman believes that only chumps think that way. He has chosen to exist outside the collective. Sooner or later that belief leads to isolation, depression and despair beyond imagining.

The rest of us are stuck with each other and we have to learn how to live together in harmony and thank the God of our understanding that we are not George Zimmerman.


Shellie Zimmerman Has No Defense to the Perjury Charge II

February 21, 2013

Thursday, February 21, 2013

Greetings everyone.

Searching Mind inspired me to write this post when he mentioned Nogues v. State, 762 So.2d 967 (Fla. 3d DCA 2000) in a comment and asked what effect it might have on the State’s perjury case against Shellie Zimmerman.

This is my answer to his comment.

Great catch coming up with the Nogues case where the Court reversed the defendant police officer’s conviction for perjury because the prosecution based its case on the testimony of only one witness. The Court said,

This testimony was not legally sufficient to establish the crime of perjury. It is a well-established principle of law that “a verdict of conviction in a perjury case must have for its support something more than the testimony of one witness.” Yarbrough v. State, 79 Fla. 256, 83 So. 873, 874 (1920). “To convict of the crime of perjury, the offense must be proved by the oaths of two witnesses, or by the oath of one witness, and by other independent and corroborating circumstances, which is deemed of equal weight with another witness.” Id. (citations omitted). See also Rader v. State, 52 So.2d 105, 108 (Fla. 1951) (“The falsity of the material matter sworn to must be proved by the oaths of two witnesses, or by the oath of one witness and other independent and corroborating circumstances which are of equal weight with the testimony of another witness.”); Wells v. State, 270 So.2d 399 (Fla. 3d DCA 1972) (same), cert. denied, 277 So.2d 533 (Fla.), cert. denied, 414 U.S. 1024, 94 S.Ct. 449, 38 L.Ed.2d 316 (1973).

Nogues was a former Miami police officer who was charged with making a false statement under oath “during a formal investigation of an extortion scheme directed at other officers and related to the “Miami River Cops” scandal. In that statement, Nogues denied that he was present at a meeting between George Fonte, Charles Orrett, Armando Garcia, and Dagoberto Garcia at the defendant’s house, held to discuss extorting money from one of them. Nogues asserted that such a meeting had “never occurred,” and that he was “never present in any of that stuff.”

The only witness who testified against him was Charles Orrett, “a Metro-Dade police officer who had agreed to cooperate with State and federal authorities. Orrett testified at trial that Nogues had indeed met with other police officers at his house to plan an extortion scheme.”

I believe Shellie Zimmerman’s case is covered by the other-independent-and-corroborating-evidence exception mentioned in Nogues because the State will be relying on Paypal records and the defendant’s and her own bank statements to corroborate what she said regarding their scheme to hide the Paypal donations from the Court by transferring the money into her account and his sister’s account structuring the transfer into a series of multiple transactions in amounts less than $10,000. I expect the evidence will show that she transferred $67,000 into her account and that money was in her account when she testified at the bond hearing.


Shellie Zimmerman Has No Defense to the Perjury Charge

February 21, 2013

Wednesday, February 20, 2013

Kelly Simms, the attorney who represents Shellie Zimmerman, predicted yesterday that a jury will find her not guilty of perjury. He said,

If you study carefully the questions she was asked, he said, she answered truthfully.

“It’s all about specificity,” he said.

I agree that the issue is all about specificity, but I do not agree with his prediction.

Keeping in mind that a witness is only required to truthfully answer the question asked and that any ambiguities or uncertainties in the question must be resolved in favor of the witness answering it, let us take a look at the exchange.

Here is Mark O’Mara questioning Shellie Zimmerman after she was duly sworn:

O’MARA: Another condition or another concern the court would have is a bond amount. I would ask you then realizing that one option is for the court to grant a monetary bond, if you could advise the court of your financial circumstances so I’ll ask you a couple of questions.

Are you working presently?

S. ZIMMERMAN: No, I’m not.

O’MARA: And how do you — what do you do with your time?

S. ZIMMERMAN: I am a nursing student.

O’MARA: OK. Is that a full-time endeavor presently? S. ZIMMERMAN: Yes, it is.

O’MARA: OK. How long have you been doing that?

S. ZIMMERMAN: Well, I am four weeks away from my graduation.

O’MARA: OK. So you’re not earning any income presently?

S. ZIMMERMAN: Correct.

O’MARA: Do you own the home that you live or lived in?

S. ZIMMERMAN: No, sir.

O’MARA: Other major assets that you have which you can liquidate reasonably to assist in coming up with money for a bond?

S. ZIMMERMAN: None that I know of.

O’MARA: I discussed with you the pending motion to have your husband, George, declared indigent for cost, have I not?

S. ZIMMERMAN: Yes, you have.

O’MARA: Are you of any financial means where you could assist in those costs?

S. ZIMMERMAN: Not that I’m aware of.

Shellie Zimmerman transferred money from Paypal into the defendant’s account and then from his account into her account where she parked it for awhile until he bonded out and moved it back into his account. I believe she had $67 K in her account when she answered O’Mara’s question.

She cannot credibly deny that she knew she had $67 K in her account because she deposited it into her account.

I presume Sims will argue that she regarded that money to be the defendant’s property even though it was in her account. Therefore, she believed that she did not have any assets when she answered the question.

Good luck with that, Mr. Simms.

Shellie is not a vegetable. Absent some compelling testimony from a clinical psychologist supported by test results that her intellectual functioning is so impaired that she did not understand the questions and she compensated by pretending that she did in order to avoid humiliating herself by admitting that she did not know what he meant, I do not believe that a jury would acquit her.

Indeed, O’Mara asked straightforward questions and she did not exhibit any sign of confusion or ask him to clarify any question. She also stated that she was a full-time student in a nursing program and only four weeks away from graduating. No sign of impaired intellectual functioning or lack of comprehension is evident in her responses.

Moreover, she communicated with her husband in code and carried out a deceptive scheme involving multiple transfers of money over a short period of time in amounts less than $10,000. In other words, her conduct exhibits that she knows that she is playing a shell game with his money to help him conceal $67 K from creditors and the court by concealing it in her account.

I do not think a jury will be sympathetic, given her unapologetic and willing participation in that scheme.

Simms said, she is “getting stronger every day.” I hope that means she is becoming more assertive and her husband’s control is weakening. I believe it would be in her best interests to cut and run from him. She needs to get as far away as possible and resolve her perjury case without going to trial. He used her and she owes him nothing. She will be a helluva lot more sympathetic to prosecutors and the judge, if she acknowledges that he used her, expresses a willingness to cooperate and tell all, and asks for help.

I think that’s the only way she can avoid going to prison.


Has the Defense Checkmated Itself in Trayvon Martin Murder Case

February 19, 2013

Tuesday, February 19, 2013

Esentrick posted this comment at 12:44 am last night regarding my post,

“Professor could you explain, when you have a chance, Estes vs. Texas, 1965 in which the Supreme Court ruled that media coverage by its nature may taint potential jurors and damage a defendant’s ability to receive a fair trial? and how would Chandler v. Florida apply?

I chose this comment because it provides me with an opportunity to expound on yesterday’s post

Good question.

In Chandler, the SCOTUS in effect overruled the Estes prohibition against televising legal proceedings, leaving it up to the states to formulate rules controlling how the media may televise legal proceedings, including trials. In Chandler, the SCOTUS approved the Florida Supreme Court rule that the trial court applied to television coverage of the trial.

I do not believe the issue is whether the Zimmerman hearings can be televised. They have and they will continue to be televised.

The issue is what can the trial court do to minimize, if not eliminate, the potential prejudice to the defendant’s right to a fair trial by a fair and impartial jury that might result from the Court denying the defendant’s claim that he killed Trayvon in self-defense.

The problem is timing.

I believe Judge Nelson will reject the defendant’s claim of self-defense at the conclusion of a televised immunity hearing watched by a nationwide audience of millions. I also believe that 500 people in Seminole County will be receiving a summons to jury duty just after she announces her decision.

I imagine that many of those 500 people will report for jury duty knowing that the Court rejected the defendant’s claim of self-defense and those who have not heard the news will know it within 10 minutes after they enter the courthouse.

Will it be possible to seat a fair and impartial jury when every potential juror in the pool knows that Judge Nelson rejected the defendant’s claim of self-defense?

I do not know the answer, but I do know that, if I were the defendant, I would waive my right to an immunity hearing to avoid finding out the answer.

To be clear, I have no sympathy for the defendant and his defense team because they could have scheduled the immunity hearing long ago. Instead of trying their case in an immunity hearing, however, they chose to try it in the court of public opinion. Instead of gaining support, they have caused controversy and lost support. Now they have checkmated themselves.

For additional information on the intersection of the people’s right to know, which is protected by the First Amendment, and the defendant’s right to be tried by a fair and impartial jury, which is protected by the Sixth Amendment, please read Chandler v. Florida, 449 U.S. 560 (1981).


George Zimmerman Should Waive the Immunity Hearing

February 18, 2013

Monday, February 18, 2013

Should the defendant opt for an immunity hearing or should he waive it?

I conclude that he should waive it because he has a vanishingly small chance to win the immunity hearing together with a substantial probability that the publicity generated by the hearing will cause irreparable damage to his credibility and destroy his claim of self-defense.

First, the defendant has the right and the responsibility to make the decision. His lawyers have a duty to help him make a well-informed choice and he should consider everything they say. As I used to tell my clients, they have to make the decision because they will experience the awful lifetime consequences of the wrong choice, whereas right or wrong, I get to go home.

Second, I believe he should make an evidence-based decision carefully weighing the probability of success against the probability of failure and the likely effect such failure would have on jury selection and seating a fair and impartial jury a month later. For example, how might the negative publicity generated by the physical and forensic evidence contradicting the defendant’s claim of self-defense, the defendant’s failure to handle cross examination, and the Court’s denial of his motion for immunity hurt his chances of success at the trial?

Unlike immunity hearings in other SYG cases, the defendant can reasonably expect that a substantial and well-informed national audience will watch gavel-to-gavel and livestream coverage of the hearing as well as comments and discussion by forensic and legal experts analyzing what happened and predicting what will happen at the trial. The massive publicity and national discussion that the hearing generates, little more than a month before the parties start selecting a jury, likely will be unprecedented. Accurately estimating the potential negative impact of a decision denying his motion for immunity and the evidence that supports that decision will be difficult because we have never been there before and have no standard for comparison. Nevertheless, I am expecting a tsunami of bad news for the defense as it becomes clear that he did not tell the truth.

Can the Court adequately screen prospective jurors to eliminate the effect of negative publicity from the immunity hearing on the defendant’s claim of self-defense?

The Court can use individual voir dire to screen jurors regarding what they have read or heard about the case, whether they have formed any opinions about the defendant’s guilt or innocence, and if they believe they can put aside any opinions they might have and objectively evaluate the evidence admitted at trial. Even though individual voir dire can take longer to seat a jury than trying the case, the process offers a major advantage over the traditional method of questioning jurors in the presence of each other. It creates an opportunity to thoroughly question each prospective juror without fear that any answer might influence or poison the others.

Individual voir dire complimented by the use of juror questionnaires that focus attention on problematic answers is the best method available to screen prospective jurors regarding whether and to what extent their objectivity may have been compromised by pretrial publicity without risking that their answers will compromise the objectivity of other prospective jurors who may not have heard that information.

Prospective jurors who admit that they do not believe they can weigh the evidence objectively and decide the case in a fair and impartial manner will be challenged and excused for cause. Since there is no limitation on the number of challenges for cause that a party may assert, the use of individual voir dire should result in significantly reducing, if not eliminating prospective jurors whose objectivity has been compromised by exposure to pretrial publicity.

However, having screened jurors in capital cases using individual voir dire and juror questionnaires regarding their opinions about the death penalty and the effect of pretrial publicity, I have learned that many people are unaware of or seriously underestimate the effect of pretrial publicity on their ability to objectively weigh the evidence admitted during trial. When I ask if their objectivity has been compromised by pretrial publicity, many of them will react with a hostile denial as if I had insulted them.

I generally attempt to exclude people from serving on juries deciding my client’s fate, if they stubbornly persist in denying that information about a case can create a bias or prejudice about the case or my client and that such bias or prejudice thereafter will function as a filter that affects how much weight they will assign to the evidence. I have discovered that awareness of or sensitivity to this process promotes objectivity.

When a prospective juror takes offense, I begin a chase to trap them into answering a question that provides a basis to support a challenge for cause. If I am unsuccessful, I have to use a peremptory challenge to eliminate them. Unlike challenges for cause, a lawyer is not required to provide a reason for asserting a peremptory challenge. Judicious use of peremptory challenges is required because each side has a limited number they can use. For example, each side will be limited to three peremptory challenges in the Martin case.

I do not believe three peremptory challenges per side will be sufficient to eliminate the risk of a jury tainted by negative publicity about the defendant and his case at the immunity hearing a month earlier.

A possible solution might be to continue the trial to allow people to forget, but I do not believe that strategy will work because the defendant is toxic and his conduct was too egregious. People are not likely to forget.

Given what I know about the evidence in this case, I would recommend that the defendant waive the immunity hearing. I believe the probability of success is vanishingly small and the potential for irreparable damage to his defense is so high that he can only diminish his chances of winning the trial if he proceeds with the immunity hearing.


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