Defense in Kelly Thomas case resorts to character assassination

December 12, 2013

Thursday, December 12, 2014

Good evening:

The prosecution rested its case yesterday in the Kelly Thomas case.

Defense resorts to character assassination.

Adolfo Flores of the Los Angeles Times reports,

Among the witnesses defense attorneys called to the stand Thursday were some of Thomas’ own relatives, including his grandfather, Walter Dieball, who testified that in 1995, his grandson hit him over the head with a fireplace poker while he was watching television.

“I heard the fireplace tools rattling and I looked around and he had the poker in his hand and he hit me with it,” Dieball said.

Ramos’ attorney, John Barnett, asked Dieball if the poker was heavy, tapping his podium twice with a fireplace poker.
Dieball said it was.

An image of the fireplace poker taken after Kelly Thomas struck Dieball was projected onto a screen. It was bent.

Dieball said Thomas hit him another time on the head when he was on his knees attempting to get up and another time on the back as he fled into a room.

He told prosecutors he went into the room because it had a lock, a phone to call 911 and a gun for protection. Dieball, who was pushed to the stand in a wheelchair, wore a yellow ribbon worn by supporters of Thomas.

The defense also called his mother to the stand. She testified that he attempted to choke her in December 2010. She also was wearing a pin exhibiting a photo of his face and a yellow ribbon.

They also called a man who testified that Kelly punched him on the chin when he told him to leave a party for being disruptive.

A woman, who worked at a produce stand in 2010, testified that Kelly Thomas threw rocks at her after she told him to leave the area and chased him away with pepper spray and a machete.

Whether these violent acts will influence the jury remains to be seen.

Regardless of what he did or threatened to do to someone else at some other time in the past, the simple fact remains that the video shows that the police beat an unarmed young man to death and never even attempted to handcuff him.

The trial will resume on Monday.

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Mark O’Mara engineers snipe hunt to avoid responsibility for publicizing irrelevant evidence

May 29, 2013

Wednesday, May 29, 2013

Good afternoon:

NBC News reported late yesterday:

A Florida judge ruled Tuesday that George Zimmerman’s defense team cannot mention Trayvon Martin’s suspension from school, prior marijuana use, text messages or past fighting during opening statements at next month’s trial.

Judge Debra Nelson said that during the trial she will consider motions to admit details as evidence on a case-by-case basis, outside the presence of jurors who will decide if Zimmerman is guilty of second-degree murder in the shooting death of Martin.

Although this statement is technically correct, it also is misleading because Judge Nelson actually concluded that the evidence was irrelevant and inadmissible. That is why she granted the State’s motion in limine to prohibit the defense from mentioning any of those things during jury selection and opening statement.

The only reason she might change her mind is if the State were to open the door by introducing evidence of good character. That is not going to happen because Trayvon’s character, whether good or bad, is not an issue in this case. BDLR has no reason to introduce evidence of good character and I am certain that he was not planning on doing that because he knows that good character evidence is irrelevant. Since the defense cannot rebut something that does not happen, the jury will not hear any of this information.

That is not the end of the story, however, because the irrelevant information in question was obtained from Trayvon Martin’s phone and it is the subject of a defense motion for sanctions and request for a judicial inquiry that Judge Nelson has scheduled for June 6th, the same day as the Frye hearing regarding the admissibility of expert testimony identifying the person who uttered the terrified death shriek.

I do not believe Judge Nelson is going to find that BDLR withheld evidence from the defense. The evidence was recorded on Trayvon’s phone in binary code and a copy of that raw data was disclosed to the defense sometime in late January. O’Mara did not hire an expert or purchase a software program that can translate that code into plain English.

A few weeks ago, O’Mara was contacted by an attorney who represents Ben Kruibdos, the Director of Information Technology for the Fourth Judicial Circuit. The attorney is Wesley White.

The Miami Herald reports:

White led the Nassau County state attorney’s office before resigning in December, citing differences of opinion with Corey. He is now in private practice.

White said the photos Kruidbos retrieved were of a hand holding a gun and one depicted drugs. The content of the text messages wasn’t specified.

“I’m an officer of the court and I’m obliged to inform the court of any misconduct or any potential misconduct coming before the court. Whether it’s by the defense or prosecution,” White said.

Apparently, Kruibdos extracted the two photographs and possibly the text messages from the binary code and gave them to BDLR who did not pass them on to O’Mara.

Does that constitute a discovery violation or a tempest in a teapot?

I believe it is a tempest in a teapot, so long as BDLR turned over the raw data.

Judge Nelson has already ruled that the evidence is not relevant or admissible and it certainly is not exculpatory.

We will have to wait and see how the hearing turns out, but this looks like another snipe hunt instigated by O’Mara to distract everyone from holding him accountable for publicly disclosing information that should not have been disclosed.

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Proposal to protect Dee Dee from witness intimidation

April 1, 2013

Monday, April 1,2013

I write today to provide additional context regarding when the prosecution must turn over Brady material to the defense in federal court. This article supplements The Prosecution did not violate the Brady rule in Zimmerman case.

Discovery in federal criminal cases is controlled by the Jencks Act (18 USC 3100 et. seq.), which was passed by Congress in the early 1930s in order to protect the lives and safety of prosecution witnesses in cases against members of criminal organizations (i.e., mob prosecutions). Pursuant to the Jencks Act, federal prosecutors do not have to disclose the identity of a witness to the defense until the witness takes the stand. They do not have to disclose witness statements until after the witness testifies on direct examination. To prevent recessing a trial after the direct examination of each witness to allow defense counsel an opportunity to read the statements before commencing cross examination, federal prosecutors in most districts provide a list of their witnesses and all of their statements and reports late Friday afternoon before the trial starts on the following Monday.

The only discovery that a defendant has a right to obtain before the Jencks material is delivered on Friday afternoon, is his statements, search warrants, affidavits for search warrants, and an inventory of all of his property seized by federal agents executing those searches.

The Brady rule applies in federal criminal cases just as it does in state criminal cases.

As I stated in my Saturday post, regardless of when the defense requests Brady material in a state case, there is no violation of the Brady rule so long as the defense receives the defendant’s Brady material before the trial starts. The same is true in federal court.

I hope this brief description of discovery practices in federal court that do not violate the Brady rule sheds additional light on the defendant’s frivolous claim that Bernie de la Rionda violated the Brady rule by waiting until the night before a pretrial hearing to inform the defense that no hospital records supported Dee Dee’s claim that she missed the funeral and wake because she was in the hospital.

If I were the judge handling this case, I would enter an order dismissing the two defense motions because they are frivolous and I would assess terms against O’Mara for wasting the court’s time.

I had another reason for mentioning the Jencks Act in this post. Since I am concerned about protecting Dee Dee from willful, intentional and malicious doxing and character assassination by people who pride themselves in breitbarting those who seek justice for Trayvon, I think Bernie de la Rionda might want to consider seeking the court’s permission to wait until the trial starts before it discloses information that identifies Dee Dee and any other witness for whom there are reasonable grounds to believe they may be subjected to the same intimidating criminal acts.


Dee Dee did not lie or commit perjury in Zimmerman case

March 5, 2013

Tuesday, March 5, 2013

Before the beginning of today’s hearing in the Zimmerman case, the prosecution informed the defense that Dee Dee (the name given to Trayvon Martin’s girlfriend to protect her anonymity) did not go to a hospital instead of attending Trayvon’s funeral.

Judge Nelson dismissed the defense motion for Dee Dee’s medical records as moot.

The defense now claims that Dee Dee lied.

As the following partial transcript of her interview under oath by prosecutor Bernie de la Rionda conclusively demonstrates, she not lie or commit perjury.

BDLR:_ OK._ I’m not saying that they did._ I’m just making sure the records’ clear on that….Um…you obviously found out about what happened to Trayvon, right?_ And at some point you ended up knowing that he was killed, right?

Dee Dee:_ Yeah.

BDLR:_ Were you able to go to the funeral or to the wake?

Dee Dee:__I was goin’ to go, but…

BDLR:_ OK, what happened?

Dee Dee:__I didn’ feel good.

BDLR:_ OK, did you end up going to the hospital or somewhere?

Dee Dee:_ Mmmm…Yeah, I had high blood pressure.”

(Emphasis supplied)

The question is unclear because he asked if she went to a hospital or somewhere.

Therefore, her answer was not a lie and if it was not a lie, it certainly was not perjury.

Nevertheless, let us assume for the sake of argument that she did lie.

As I said in response to a comment by Unabogie,

I think you are being way too literal.

Lying is lying, by definition, but there is an unlimited number of reasons why people lie.

Intentionally lying to conceal the existence of more than a $100,000 in cash from the court during a bail hearing is, by any standard one might choose to apply, a far more serious matter than lying because you did not want to admit that you were too upset to attend a funeral.

I do not believe the prosecution is the least bit worried about this turn of events.

Proof of perjury requires proving beyond a reasonable doubt that the defendant unambiguously lied under oath about a material matter.

BDLR’s question was ambiguous and DD’s response was not about a material matter, as is the case regarding Shellie Zimmerman’s denial under oath during a bail hearing that she did not know about the money she had transferred into her account.

Therefore, even if we assume for the sake of argument that Dee Dee lied, she did not commit and will not be charged with perjury.

Anyone who says she lied and committed perjury is mistaken and anyone who claims that Dee Dee is as guilty of perjury as Shellie Zimmerman is wrong and guilty of asserting false equivalencies.

As I said in an earlier comment this morning before I saw the transcript, I do not believe this development today changes anything.

I predict DD will be one of the last witnesses called by the State after all of the evidence about the shooting and the events that led up to it have been admitted into evidence.

She will simply be confirming what the evidence has already proven. BDLR will ask her about the false statement and she will probably break down and cry as she admits that she lied about that because she was too embarrassed to admit that she was too upset to attend the funeral.

I think the jury and everyone in the courtroom, except the defendant, will understand that and forgive her for lying.

I believe Sybrina will be the last witness because she is Trayvon’s mom and the emotional impact of her testimony will be extremely powerful.

After all is said and done, I do not think anyone will remember, much less care, that DD lied. It’s just not very important.

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Trayvon Martin’s Murder Forces Us To Confront Racism

December 27, 2012

Thursday, December 27, 2012

I realized the defendant was lying when I first read his narrative about the shooting.

Why?

Because I believe it’s extremely unlikely that an unarmed person would flee from a menacing stranger following him and, after successfully getting away, voluntarily approach, engage and attempt to beat that stranger to death with his bare hands.

That story is ridiculous. It made no sense to me when I first read it and it makes no sense to me now.

With two exceptions, I never have understood why anyone would believe that ridiculous story.

As a former criminal defense attorney and law professor, I certainly understand, support and believe in the presumption of innocence. I trained myself to think that way and always searched for the weaknesses in the prosecution’s case against my clients. I had no problem exploiting those vulnerabilities for the benefit of my clients. I suspect that most of the lawyers and law professors who have publicly supported the defendant did so from the perspective of presuming that he spoke the truth.

Since I no longer practice or teach law, I believe I can evaluate this case from a more objective perspective.

I cannot and will not presume that an obvious bullshit story is the truth.

I have reviewed all of the evidence released to the public to date and I have not found any evidence that supports the defendant’s story. Instead, his multiple inconsistent and contradictory statements conflict with the physical and forensic evidence. In fact, he has admitted that he shot and killed Trayvon Martin after he had him under control with a wrist lock. He said he pulled out his gun, extended his right arm, aimed to avoid shooting his left hand, and fired the single shot that killed Trayvon Martin. The terrified, prolonged and desperate shriek protesting the depraved execution that was about to occur finally and forever was silenced by the gunshot.

No one is going to believe that the defendant uttered that inhuman shriek with a loaded gun in his hand.

I feel obliged to remind my former colleagues that the presumption of innocence does not require them to blindly accept a liar’s story and actively defend that liar by supporting his effort to demonize an innocent victim and his parents. I am offended, horrified and disgusted by the unrelenting attacks on Trayvon, his family and their supporters. I have no respect for anyone who participates in or supports those attacks, including members of the mainstream media who publicize them, and by so doing, legitimize them.

Enough is enough.

We do not need or want to hear any more lying racist Zimmermans polluting the news.

The Trayvon Martin murder case is much more than a set of hypothetical facts to be discussed in a classroom. It is a real case involving real people and I think our responses to this tragedy reveal much about ourselves as individuals and as a society.

For example, in order to believe the defendant’s story, one would have to believe that Trayvon Martin acted like a stereotypical Black Gangsta thug in a Hollywood action movie. Would any Caucasian person believe the defendant’s story, if the person he killed were Caucasian?

Is it not easier for Caucasians to believe his story because the victim is Black?

I believe we would not have heard about this case, if Trayvon Martin had been a Caucasian kid. The defendant would have been arrested and jailed that first night. He would have been charged with second degree murder and prosecuted without any of the publicity and controversy that we have seen.

The most important lesson of this case is that racism is alive and well in our nation. The defendant’s characterization of Trayvon Martin presents each one of us with a litmus test. Those who accept and believe what he said are failing the litmus test and seriously need to ask themselves why they were so willing to believe such an obvious lie.

Those who continue to believe the defendant in the face of overwhelming evidence that he is a liar may be beyond help.

We live in a racist society and nothing will change unless we admit that we do and we commit to ending racism. As always, the self is the place to start changing society.

Trayvon Martin will not have died in vain if his death becomes the rallying point for a systematic, determined and prolonged effort to once and for all eliminate racism in our society.

Unless we succeed, we will remain a racist and failed society.


Zimmerman: Lawyers Lawyers Everywhere — Important Hearing Today at 1:30 pm EDT

October 19, 2012

Lawyers for prosecution, defense and various news media organizations will be in court this afternoon before Seminole County Circuit Court Judge Debra Nelson to argue about various discovery related issues in the Zimmerman case. This should be interesting, so you may want to pay attention.

The always reliable and accurate Frances Robles of the Miami Herald has the breakdown:

Assistant State Attorney Bernie de la Rionda filed papers Thursday in Seminole County Circuit Court asking a judge to muzzle defense attorney Mark O’Mara, whom the prosecutor accuses of taking to the Internet to try his case in the media.

“Unless defense counsel stops talking to the media about the case, in person or by use of defendant’s website, it will (be) more difficult to find jurors who have not been influenced by the media accounts of the case,” de la Rionda said. ” … An impartial jury could never be seated.”

De la Rionda asked Circuit Judge Debra Nelson to issue a gag order, which would silence the defense, prosecutors, law enforcement and any of the lawyers’ employees. If the judge agrees, lawyers and investigators would not be allowed to make any statements outside the courtroom about the case, evidence, credibility of witnesses or possible sentences. If the judge allows it, they would even be kept from opining about Zimmerman’s guilt or innocence.

I am not surprised by the State’s motion. The defense has been trying its case in the Court of Public Opinion for months now and the prosecution has at long last run out of patience.

Of course, the prosecution has benefited more than the defense from this strategy. After all, who can forget George Zimmerman’s appearance on the Sean Hannity Show. His smirks, denial of regret, and shifting of responsibility for Trayvon Martin’s death onto God Almighty Himself has to be one of the greatest moments in network television history for this still young second decade.

Although there may still be more gold to be mined in the proverbial “them thar hills,” I think the prosecution comprehends the notion of diminishing returns and wants to cash-in its winnings and move on to other pleasantries of a somewhat more formal nature.

The defense and media lawyers will be objecting to the motion and I do not expect Judge Nelson will seriously consider granting it. Florida’s Sunshine Law is an impressive barrier to a gag order. I predict she will deliver a sternly worded rebuke to defense counsel and we shall see what we shall see.

Judge Nelson also will be hearing argument concerning the defense request to subpoena Trayvon Martin’s middle school and high school records. The State objects to the request on the grounds that the information in the records, whether good or bad, is protected from disclosure by privacy statutes and it would be irrelevant and inadmissible at trial. Prosecutor Bernie de la Rionda called it a “fishing expedition.”

As I have said before, I believe the rules of evidence permit the defense to introduce evidence of a pertinent character trait in support of Zimmerman’s claim that Martin was the aggressor. For example, if Trayvon Martin was known to be an aggressive bully who started fights, the defense would be permitted to bring that out at trial. Specific acts of misconduct would not be admissible, however. The defense would be limited to introducing the evidence as a character trait. Assuming such evidence exists, which I doubt, it might be in the school records. Therefore, I believe the defense has a legitimate reason to want to review the records.

The problem is that the defense may post Martin’s records on its website, regardless whether they contain any reference to misconduct of any kind, whether admissible or not. The State already did that with George Zimmerman’s school records and has apologized for doing so, claiming it was a clerical mistake. Now it seeks to prevent the defense from administering a dose of what’s good for the goose is good for the gander.

There is a solution to this sort of problem and I have previously recommended it. It’s called in camera review. No, it does not involve a camera. In camera review is a legal term that means in chambers. That is, the school records would be filed under seal and Judge Nelson would review them in her chambers and decide whether they contain evidence the defense has a right to review. She discloses it to both sides, if they do. Presumably, she also would order both sides not to publicize the records and might even threaten to hold them in contempt of court, if they were to violate the order.

As I said, I doubt the records contain the information that the defense has a legitimate reason to seek, so this dispute will likely be more like a proverbial tempest in a teapot. If there is any substance to it, there is a solution to deal with the records and protect privacy that has worked in the past.

The State also wants Judge Nelson to order the defense to file its requests for subpoenas in the future under seal so that it cannot publicize them on its website before submitting them for the court’s approval. This argument is part of the prosecution’s strategy to stop the defense from trying its case in the Court of Public Opinion.

This is another issue that Judge Nelson can handle with a stern warning and threat to use her contempt powers. I predict she will do so rather than establishing a special rule for O’Mara, as opposed to all other defense counsel, when seeking court approval for subpoenas.

The prosecution also is seeking George Zimmerman’s medical records at the clinic where he sought a permission-to-return-to-work authorization the day after the shooting. The defense objects on privacy grounds. I think the defense likely waived doctor-patient privilege and privacy concerns when it released a portion of his records and has intimated that his ADHD condition might explain some of his inconsistencies.

Finally, there is an interesting issue about the discoverability of Trayvon Martin’s social media accounts (Facebook and Twitter). A lawyer representing Facebook has refused to comply with the subpoena.

Once again, here’s Frances Robles,

On Monday, Facebook lawyers sent a letter to O’Mara vowing to fight the subpoena. Martin’s social-media account, Facebook attorney Furqan Mohammed said, is not only irrelevant to the case, but by law cannot be released. Mohammed said federal law protects the account information, and added that arguing the issue would have to be done in a California court.

“We think the attorneys for Facebook are essentially saying the same thing we have been saying all along: Trayvon’s Facebook and social media are completely irrelevant,” said Benjamin Crump, an attorney for Martin’s family. “All of these issues are distractions that take the focus off George Zimmerman.”

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Zimmerman Requests Martin’s School Records and Social Media Accounts

October 9, 2012

The Orlando Sentinel has reported today:

Zimmerman’s defense has asked for subpoenas for records from the teenager’s middle and high schools, as well as his Twitter and Facebook accounts. A hearing has been set for Oct. 19.

Zimmerman, 29, fatally shot the Miami Gardens 17-year-old Feb. 26 in Sanford. Authorities allege he profiled and pursued the teen.

Zimmerman says he fired in self-defense after Trayvon attacked him. Zimmerman’s defense is also asking for a continuance. In a motion, the defense team writes that “at least 50-75” witness depositions must be completed in the case before it will be ready for trial.

In a third new motion, O’Mara asked to be allowed to review the court’s copy of a recorded law-enforcement interview of a woman identified as “Witness 9.” That witness, in two interviews made public in the case already, accused Zimmerman of disliking black people and of molesting her when they were both young.

O’Mara writes in his motion that the state failed several times to provide him with a working copy of a third Witness 9 interview, and he wants to know whether Circuit Judge Kenneth Lester Jr. received a bad copy, too. Zimmerman “requests the opportunity to review, with the court, the recordings … to ascertain whether or not the Court received an accurate recording as finally disclosed by the State … or if the Court received an inaccurate or inaudible recording, as the defense has received up until” the latest evidence exchange on Sept. 19.

Global Grind reports that Benjamin Crump said the request is irrelevant.

“Trayvon’s parents maintain that his school records and Facebook page are completely irrelevant to George Zimmerman’s decision to get out of his car to profile, pursue, and shoot their son in the heart on February 26, 2012.

How does George Zimmerman’s review of Trayvon Martin’s high school and middle school records and Facebook page bear any relevance to Zimmerman’s decision to pull the trigger and kill a seventeen year old child? Is this going to be a new legal standard we are setting- for a murderer to review the school records and Facebook page of his teenage victim to determine whether or not he should have killed him?”

After Trayvon’s death, there was a small group of hateful and racist people, who attempted to destroy his legacy, reputation, and image.

These people hacked this dead youth’s social media accounts, his email account, and stooped as low as to plaster the internet with photoshopped and fake images purporting to be Trayvon.

On the advice of counsel, and with the intent to preserve Trayvon’s public reputation, Trayvon Martin’s parents deactivated all of his electronic accounts.”

I have previously written that the rules of evidence permit the defense to introduce evidence that Trayvon was an aggressive bully, assuming such evidence exists, to support Zimmerman’s claim that Trayvon was the aggressor. However, specific instances of misconduct would not be admissible. Instead, the evidence would have to be limited to stating the character trait.

I do not believe such evidence exists and I suspect O’Mara knows that. Since he appears to be determined to try the case in the court of public opinion, I fear that his real motive is to obtain the records to post them on the internet. This would further publicize the recent suspension for the trace amount of marijuana detected in his backpack and the earlier report about some jewelry and a screwdriver that were found in his backpack. No criminal charges were filed in either case and the evidence would not be admissible at trial for any purpose.

If O’Mara finds some evidence that Trayvon was an aggressive bully and he introduces it at trial, he will open the door for the prosecution to introduce similar type evidence regarding Zimmerman, which we know exists.

The hearing will be before Judge Debra Nelson on Friday, October 19, 2012.

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Zimmerman: Dee Dee’s Testimony Regarding Trayvon Martin’s Fear of Zimmerman is Admissible

September 12, 2012

Dennis recently asked the following question in a comment to my post recommending the appointment of a special master to screen discovery.

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.”

My Answer:

“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.”

Dee Dee is a potentially devastating witness for the prosecution because she was listening to Trayvon’s narrative description of Zimmerman’s menacing behavior and his own fearful reaction to it. She also puts the lie to Zimmerman’s skipping psycho-gangsta who materializes out of the darkness and attempts to kill Zimmerman with his bare hands while uttering dated B-movie dialog.

I do not believe her testimony is necessary to prove Zimmerman’s guilt because the forensics and his own conflicting and inconsistent stories should be sufficient to accomplish that. Nevertheless, she adds something important. She humanizes him and she serves as his voice from beyond the grave. Because of this, Zimmerman’s mad dog supporters have assassinated her character with extraordinary relish.

I am sure most of you have read some of their accusations, if not all of them, and shaken your heads in disgust at their tactics. I did and ever since they attempted to drown my voice in a tsunami of lies, I have assumed everything they say about everyone who is not a Zimmerman supporter is a lie. I have been ignoring them and will continue to ignore them because they are a cancer on this case. Therefore, as with the Zimmerman principle, I assume everything they said about Dee Dee is or anyone else in this case is a lie, unless it is corroborated by independent credible evidence.

At first glance, the hearsay rule would appear to exclude everything Trayvon said to Dee Dee. However, there are three reasons why it does not.

(1) A statement by Trayvon to Dee Dee is not hearsay unless it is offered to prove the truth of the matter asserted in the statement.

For example, if Trayvon said, I ran away from the creepy man following me. the statement would be hearsay, if offered to prove that he ran away from the creepy man following him, but it would not be hearsay, if it were offered to prove Trayvon was afraid of Zimmerman. See Rule 801(c).

(2) Even if a statement is offered to prove the truth of the matter asserted in the statement, for example that he ran away from the creepy man following him, it’s admissible pursuant to the present-sense-impression exception to the hearsay rule since it’s “a statement describing or explaining an event or condition while the declarant [Trayvon] was perceiving the event or condition, or immediately thereafter.” See Rule 803(1).

(3) That statement and others like it also would be admissible to prove the truth of the matter asserted in the statement pursuant to the excited utterance exception to the hearsay rule since it’s “a statement relating to a startling event or condition made while the declarant [Trayvon] was under the stress of excitement caused by the event or condition.” See Rule Rule 803(2).

FYI: Trayvon’s statements to Dee Dee would not be admissible pursuant to Rule 804(2) as statements made under belief of impending death unless he believed his “death was imminent.” I do not doubt he believed that at some point but probably not until after he dropped the phone.

The usual manner lawyers and trial courts follow in deciding whether reasonably foreseeable and important statements will be admissible at trial, such as Dee Dee’s testimony regarding what Trayvon said to her during their phone conversations, is to bring them up via a defense motion in limine (i.e., at the beginning) before trial to exclude them. Both sides would brief the issue and argue it at a hearing outside the presence of the jury and the judge would decide whether to grant or deny the motion.

For the reasons I have stated, I believe the judge will permit the prosecution to present Trayvon’s statements to Dee Dee describing Zimmerman stalking him. Those statements will be admissible at the immunity hearing and the jury trial in support of the prosecution’s claim that Zimmerman was the aggressor.

In Mixon v. State 59 So.2d 38 (Fla. 1952), for example, as our own Boar_d_Laze mentioned, the Florida Supreme Court affirmed the defendant’s conviction for second degree murder where there was evidence that the defendant armed himself, pursued the victim, and shot him. The court stated:

“The appellant and the man he later admitted killing had an altercation while the appellant was sitting in his jeep, the other man standing at the side of the vehicle. The appellant drove to his home nearby where he procured a revolver, while his adversary continued along the highway, afoot. The appellant, accompanied by his wife and their young daughter, then drove in the same direction until he overtook his former antagonist when both stopped. … Were we convinced that the final encounter was of such nature that the issue of self defense was properly introduced and the appellant’s blame should therefore be judged by the amount of force he used in resisting his victim, we think the testimony would have been admissible. But the facts believed by the jury point too strongly to a deliberate pursuit by appellant, after the original difficulty had ended and the parties had separated. The law is quite clear that one may not provoke a difficulty and having done so act under the necessity produced by the difficulty, then kill his adversary and justify the homicide under the plea of self defense. (emphasis supplied)”

I expect the prosecution will argue that it does not matter who threw the first punch because Zimmerman provoked the confrontation by pursuing Martin in a menacing manner after dark in the rain in a vehicle and then on foot without ever identifying himself. Martin had a right to defend himself against that aggression and, if he ever hit Zimmerman, he did so lawfully. Zimmerman, of course, was not justified in using deadly force.

As I have said many times, I believe George Zimmerman will be found guilty of murder in the second degree.


Zimmerman: Is Intimidation the Defense Strategy?

August 30, 2012

People like Pliaja are not interested in finding out what really happened during the encounter between George Zimmerman and Trayvon Martin on February 26th in Sanford, FL. They are only interested in promoting George Zimmerman’s demonstrably false claim of self-defense to assure that he wins his case. We know that they are marketing and selling his defense because they refuse to engage us in reasoned debate about the significance of the forensic evidence. Instead they repeat what George Zimmerman said as though it were inscribed in stone by some deity and cannot be questioned.

Indeed, as Crane and I have learned recently and y’all have witnessed, Zimmerman’s supporters have no discernible interest in determining the truth. Instead, they will go to extraordinary lengths to intentionally produce, publish and repeat a series of false, misleading and defamatory statements in order to discredit, demonize and destroy the professional reputation and good character of anyone who dares to question George Zimmerman’s story.

As dishonest and morally reprehensible as their campaign of disinformation against me has been, they have significantly lowered the bar reaching a deplorable new low by personally attacking Crane and my daughter.

We are not the only targets of their hatred. Look at what they have done to demonize Trayvon Martin and his family

With that as background, let us consider yesterday’s decision by the Court of Appeals granting the writ of prohibition effectively removing Judge Lester.

The Court concluded by a vote of 2-1:

“Florida Rule of Judicial Administration 2.330 requires arial judge to grant a motion to disqualify without determining the accuracy of the allegations in the motion, so long as the motion is “legally sufficient.” R.M.C., 77 So. 3d at 236. “A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a wellfounded fear of not receiving a fair and impartial trial.” Id. (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)). Although many of the
allegations in Zimmerman’s motion, standing alone, do not meet the legal sufficiency test, and while this is admittedly a close call, upon careful review we find that the allegations, taken together, meet the threshold test of legal sufficiency. Accordingly, we
direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.”

Notice that neither the majority opinion nor the dissenting opinion provided an explanation or justification for the conclusion that it reached.


Important Announcement Regarding Character Assassination

August 15, 2012

As a courtesy, I am letting everyone know that I banned Justincaselawgic this morning at 11:14 am following an unpleasant exchange of comments on the thread titled:

13 Questions in Search for an Answer

In an effort to discredit me, he posted and confronted me with an affidavit that I had signed several years ago in support of an argument in a post conviction habeas petition alleging that I had provided ineffective assistance of counsel in a death penalty case that I tried and lost. The client’s name is Darrold Stenson.

After I signed the affidavit, Mr. Stenson’s lawyers discovered important exculpatory evidence that I had requested but not received before trial. The prosecutor denied that the evidence existed when, in fact, he knew that it did.

Had he acknowledged that the evidence existed and turned it over to me, I would have assessed and tried the case differently. Instead, however, Mr. Stenson and I disagreed on how to proceed with the case and our conflict eventually led to a breakdown of the attorney-client relationship.

The discovery of this important exculpatory information led defense counsel to request a new trial on the basis of the newly discovered evidence. After a hearing in which I testified in support of the motion together with expert witnesses who testified regarding the significance of the evidence, the Washington State Supreme Court reversed Mr. Stenson’s conviction and death sentence and remanded the case to the trial court for a new trial.

An important reason why the evidence was so critically important to the outcome of the trial, was that I had successfully persuaded the trial court to exclude all of the DNA evidence in the case, both RFLP and PCR.

I believe this is the only death penalty case in the United States in which defense counsel achieved such a favorable result for a client.

I am delighted with the result for Mr. Stenson, but angry and disappointed that it took 16 years of his life under sentence of death to straighten it out.

I wrote an article about the case and published it here on May 10, 2012. The article has links to the majority and minority opinions.

Someone in the pro Zimmerman camp has obtained a copy of my affidavit, which was on file in the case, and has been spreading it around the internet together with a false statement that I was disbarred from the practice of law for negligent performance in the Stenson case.

I was not disbarred, suspended or otherwise disciplined by the Washington State Bar Association. No complaint was ever filed against me with the bar association or anywhere else alleging that I had done anything wrong in Stenson’s case or any case in which I was involved and no investigation was ever conducted. I have never been sued for malpractice.

Quite the contrary, I am proud of my career as a criminal defense lawyer.

Here are two of my accomplishments:

I was a co-recipient of the National Law Journal’s prestigious Indigent Defense Award in 2000 awarded to me on behalf of Innocence Project Northwest, an organization that I co-founded at the University of Washington School of Law, for my efforts recruiting 40 lawyers to work for free with law students to free 17 innocent men and women who were wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring case.

I also was a co-recipient of the 2004 King County Washington (Seattle) Lawyer of the Year Award together with the other 7 lawyers who represented Gary Ridgway, the notorious Green River Killer who pled guilty to killing 48 women in exchange for a life without parole sentence.

I voluntarily surrendered my license to practice law after I retired from the practice of law and went into teaching.

I do not know how, why, or when justincaselawgic obtained a copy of my affidavit, but he admitted that he knew about the Stenson decision. He said he posted the affidavit to prove his accusation that I am a weak-kneed lawyer who will not fight for his clients and pleads them guilty when they are innocent.

Nothing could be further from the truth and my entire career is a testament to the contrary.

He also acknowledged that he knew I would ban him when he posted it.

I regret and apologize for telling him to take the affidavit and shove it up his ass. I lost my temper and that was not appropriate.

I do not regret or apologize for banning him.

I wrote this article to give y’all a heads-up regarding the lengths to which the pro Zimmerman camp will go to lash out at anyone who dares to challenge Zimmerman’s unsupported claim of innocence.

And it’s not limited to me. My wife, whom y’all know as Crane-Station and my daughter have been attacked by publishing personal information about them on the internet.

This fight is getting ugly which is probably a good measure of how close we are getting to the truth.

If you think we have it bad, think of Trayvon’s family.

Namaste


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