Defense team is out of control

Sunday, May 26, 2013

Good afternoon:

Countdown: Only 2 days until the May 28th hearing and the trial gets underway with jury selection 2 weeks from tomorrow.

In today’s post, I am going to follow-up on Friday’s post with some important new information that will more clearly reveal the defense strategy.

In tomorrow’s post, I will breakdown Tuesday’s hearing.

Now, let’s take another look at what happened last week.

Two important criminal defense attorneys in Florida, Eugene Nichols and Jeff Deen, criticized the Zimmerman defense team for publicizing private, irrelevant and inadmissible evidence about Trayvon Martin.

Eugene Nichols is the newly elected President of the Florida Association of Criminal Defense Lawyers, which is the Florida affiliate of the National Association of Criminal Defense Lawyers (NACDL). Jeff Deen is a former assistant state attorney and the present director of a state agency that represents criminal defendants.

I support and thank both of them for speaking out because, when a criminal defense lawyer deliberately commits a sleazy and indefensible error like this in a high visibility case, the misconduct can splash onto all criminal lawyers. Let’s face it, the public does not have a high regard for criminal defense lawyers. To many people an incident like this would merely confirm their low opinion of criminal defense lawyers in general.

That is one reason why I spoke out Friday and used the word “disgusting” to describe what they did. The other reason, of course, is that, as the blog owner, I have a duty to report what I observe without mincing words. After 48 hours to reflect on what I said in Friday’s post, my opinion has not changed. As I will proceed to explain, I am even more disgusted today than I was Friday.

I hope a lot more criminal defense lawyers will publicly condemn the defense team over the weekend. We need to remind the public that criminal defense lawyers are officers of the court who respect the law and abide by the rules of professional conduct even as they fight for their clients.

Mark O’Mara and Don West are violating those core principles by doing everything they can to obstruct due process of law and the fair administration of justice. For example, consider the following:

1. By waiving the pretrial immunity hearing, they have, in effect, conceded that they cannot prove by a preponderance of the evidence that the defendant killed Trayvon Martin in self-defense.

2. As lawyers admitted to practice by the Supreme Court of Florida and authorized to represent themselves to the public as specialists in the practice of criminal law and trying cases, they can be presumed to know the rules that govern the admissibility of evidence in criminal trials conducted in the circuit courts. Therefore, they knew that the information that they publicized last week about Trayvon would not be admissible at trial for any purpose pursuant to rules 401, 402, 403 and 608 of the rules of evidence.

3. They waited to publicize the irrelevant and inadmissible information until after the 500 people in the jury pool were notified by summons to report to court for jury selection on June 10th, thereby increasing the likelihood that most of the prospective jurors will have heard or read about it before June 10th.

4. In an effort to avoid being held accountable for poisoning the jury panel with irrelevant and inadmissible information, Mark O’Mara blamed Bernie de la Rionda. He said BDLR withheld the information from the defense in violation of the discovery rules and the Brady rule, which requires the State to disclose exculpatory information well in advance of the trial.

5. That explanation is false because:

a. the Brady rule does not apply since the information is not exculpatory for the same reason that it is irrelevant and inadmissible;

b. even if the information were exculpatory, BDLR disclosed it in timely fashion in early January;

c. The information was in the form of raw data, which is the same format that it was in when BDLR received it;

d. The defense specifically asked to be provided with the raw data and that is what it received;

e. the defense waited until after the jury summmons were mailed out to retain an expert to interpret the raw data; and

f. the defense waited until the last possible moment before the May 28th motions hearing to publicize the irrelevant and inadmissible information and to file its motion asking Judge Nelson to impose sanctions against BDLR.

6. The timing and sequence of these events constitutes powerful circumstantial evidence that poisoning the jury pool with irrelevant and inadmissible evidence was the defense team’s real motive.

7. Lawyers are required to act in good faith and prohibited from intentionally deceiving the Court.

8. Thus, defense counsel appear to have intentionally created an unringing-the-bell problem.

9. Courtesy of Robert Zimmerman, Sr., and Jr., last week the jury panel also got to hear them say that the prosecution is the result of a conspiracy between the governor, the prosecution and the judiciary to convict an innocent man.

The apparent purpose of these efforts is to maximize the possibility of seating one or more pro-Zimmerman jurors in stealth-like fashion, who are determined to acquit the defendant, regardless of the evidence and the Court’s instructions.

With exception of a deadly mix of stupidity, ignorance and incompetence that I doubt to be the case, I cannot think of any other explanation for the strange tactical decisions and materially false statements by the defense.

We should soon see an effort by the defense through one of its proxies to inform the jury panel that jurors have a right to vote their conscience in disregard of the evidence and the instructions (i.e., jury nullification).

In conclusion I believe defense counsel are engaging in a conspiracy to obstruct justice which is unlawful and unethical.

If I am correct, they should be disbarred from the practice of law.

In the meantime, I think the best way to promote Justice for Trayvon (as well as George Zimmerman) is to communicate our concerns to others and hope that BDLR and Judge Nelson put some serious hurt on the defense strategy by granting the State’s motions in limine, including the motion for a gag order. The defense motions should be denied.

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Fred