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.

Why Has the Defense Team Gone Silent in the Trayvon Martin Murder Case?

Wednesday, January 23, 2013

Good morning everyone. The defense team finally appears to be doing something that makes sense. They have stopped talking. Therefore, I do not have much to report.

The Orlando Sentinel has reported that the defense deposed John (W6) on December 17 and recently deposed Mary Cutcher and Selma Mora. The defense also reported on its website recently that it had received Trayvon Martin’s school records. I have not seen any reports regarding the defense reaction to those records and the depositions.

I imagine that the absence of commentary by the defense is due to the lack of anything bad to say about the prosecution’s case that has not already has been said and refuted.

I suspect the defense team is in turmoil because it’s running out of money and cannot afford to retain investigators and expert witnesses. The recent lawsuit filed by the company that provided security and investigation services against the defendant, his wife and Mark O’Mara to recover damages for breach of contract has placed every other service provider in the area on notice not to do business with O’Mara unless they get a substantial retainer up front adequate to cover the anticipated fees and costs. I doubt O’Mara can do that.

Meanwhile, there must be substantial and increasing resentment within the team regarding the amount of money spent for housing, feeding and protecting the defendant and his wife against an unlikely threat to their safety. I never have believed that a credible threat existed. Instead, I think they grossly overplayed the threat-to-safety and racial-fear cards to curry favor and sympathy with white racists while trolling for dollars on the internet.

The fogen’s incredibly bizarre and ill-advised claim that he is not a racist because he is part Hispanic makes no sense and it cost him the support of white racists who were the group most likely to support him. After all, this is the guy who used his My Space page to hate on Mexicans and consistently described himself as white before he killed Trayvon. And despite claiming otherwise, he clearly said “fucking coons” while referring to him on the recorded police NEN call. That fact alone blows up his civil suit against NBC.

The loss of financial support by white racists must have been devastating. However, one also must add the additional loss of moral support caused by the fogen’s effort to conceal his financial assets and an extra passport from the court. I imagine that a lot of people interpreted that move as an admission of guilt.

Last, but certainly not least, the fogen told the nation on the Hannity show that he did not regret killing Trayvon and would not do anything different, if he had the opportunity to do so because it was God’s Plan for Trayvon to die. Apparently convinced that he was riding a tsunami of public support because of his stellar performance on the show, he promptly overreached when he attempted to change his agreement with Barbara Walters at the last minute by refusing to be interviewed unless she persuaded her network to pay for a month lodging in a hotel for him and his wife, plus the cost of the security team to keep them safe. Apparently he did not get the memo that nobody does that to Barbara Walter. She basically told him to go pound sand.

Although the fogen finally shut-up, he had caused irreversible damage to his defense. No reason to panic, however. His formerly estranged brother, Robert Jr., stepped into the breach to save the day. Billing himself as the spokesperson for the family and voice of reason, he attempted to put out fogen’s fire by pouring gasoline on it with predictable results. They might have been manageable and excused as an understandable overreaction to a beloved brother’s plight, if only he had stayed out of the minibars in his hotel rooms. His epic drunken late night rages on twitter revealed a damned unpleasant and clueless racist with whom no sensible and empathetic person of any race anywhere on the planet would want to associate.

Given the extreme financial predicament and ongoing clown show, I suspect raised voices, finger pointing and extreme resentments are threatening to tear apart the defense team.

I do not see the fogen admitting that he did anything wrong and I suspect his lawyers have just about run out of patience, especially if they have been working pro bono as they claim.

No one had to be a psychic to see this train coming. I am actually surprised they have maintained the appearance of being on the same page and working together pursuing an agreed strategy toward a common goal.

Do not be surprised if the engine starts smoking and the wheels fall off forcing someone to announce that they have decided they need to spend more time with their family.

Tomorrow is Motion Day in the Trayvon Martin Murder Case

Monday, December 10, 2012

I have just about fully recovered from food poisoning, but I am still a bit spaced out, so please bare with me.

Tomorrow is motion day in the Trayvon Martin murder case and one of the more interesting motions is the defendant’s motion to seal his text messages, emails and journal entries until both sides can review them. O’Mara claims release of the evidence will “adversely affect the proper administration of justice in this case, and may make it impossible to find an appropriate jury unaffected by this information.”

He must be referring to that select group of racist bigots and right-wing wackos to whom he constantly pitches his disinformation campaign.

There are reports that he sent Tracy Martin an abusive email and used the N-word “when referring who to look out for when on patrol in his Sanford, Florida neighborhood.”

I do not believe the civil suit against NBC has any chance to succeed, but I believe it certainly opened the door to publicize his use of the N-word, assuming he did so.

[H/T to Rachael for providing the links to those two reports]

He also wants to be relieved of the burdensome GPS bracelet that he has to wear.

Well, I guess I would too, but I did not shoot to death a peaceful and nonviolent Black teenager who was armed with a can of iced tea and a bag of Skittles and talking to his girlfriend on his cell phone while walking home in the rain. I am getting really tired of his incessant whining. I think he should be in jail because he is a danger to the community.

Regardless of my opinion, the time period within which to have moved for reconsideration of Judge Lester’s orders expired long ago, so this motion should be denied as untimely.

What do y’all think about these motions?

Prediction: The Zimmerman Civil Suit Will Be Dismissed

Friday, December 7, 2012

In Heck v. Humphrey, 512 U.S. 477, 487 (1994) the SCOTUS said,

We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U. S. C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Pursuant to the rule in Heck v. Humphrey, GZ’s lawsuit seeking compensatory and punitive damages for defamation and outrage must be dismissed by the trial court upon motion by the defendant NBC, or any of the three individually named plaintiffs, if a judgment in favor of the plaintiff GZ “would necessarily imply the invalidity of his conviction or sentence” for second degree murder.

Assuming the jury in the criminal case were to find GZ guilty of murder in the second degree, the verdict and sentence imposed would necessarily be called into doubt by a verdict in favor of GZ in the civil case because we can reasonably predict that the defendants in the civil case will be claiming truth as a defense. Therefore, a verdict for the plaintiff would necessarily constitute a rejection of the claim that the allegedly objectionable statements were true. Yet, a verdict of guilty in the criminal case would appear to accept the statements as true.

In addition, assuming a verdict for the plaintiff in the civil case, the amount of damages awarded might reasonably be expected to vary considerably from nominal damages of $1, if GZ is convicted of second degree murder, to potentially millions of dollars, if he is acquitted.

Put another way, there are too many issues common to both lawsuits that should preclude the civil case proceeding before the criminal case is decided.

This would be a dismissal without prejudice which means the civil suit could be refiled after the criminal case has been concluded. Meanwhile, the statute of limitations would be tolled (stop running) until the criminal case was resolved.

There also is a substantial likelihood that the civil matter will not go to trial before the criminal case goes to trial, given the precedence of criminal cases over civil cases in scheduling trial dates and the likely inability of the parties in the criminal case to complete discovery before the criminal case goes to trial. Notwithstanding GZ’s compulsion to keep talking and digging himself ever deeper into a hole, I find it hard to imagine that he will submit to a deposition by the defendants in the civil case. He will take the Fifth and this is a major stumbling block to the civil case going to trial first.

Finally, for the reasons expressed by Piranha Mom in the preceding article, Featuring Piranha Mom and her Devastating Analysis of the Lawsuit Against NBC, I would expect the trial court in the civil case, which will probably be a United States District Court judge without a sense of humor or patience for GZ’s narcissistic and sociopathic claims, will grant pretrial motions to dismiss his civil suit pursuant to Civil Rule 12(b)(6) for failure to state a claim upon which relief can be granted, or for summary judgment pursuant to Civil Rule 59.

Civil Rule 12(b)(6) motions are based on the pleadings before any discovery has taken place. The test is whether the moving party (NBC and the individually named defendants) is entitled to have the lawsuit dismissed because as a matter of law the non-moving party (plaintiff) would not be entitled to a judgment in its favor, even if all of the allegations in the complaint are assumed to be true, including all of the reasonable inferences to be drawn from those statements. I believe Heck v. Humphrey, 512 U.S. 477 (1994), constitutes an insurmountable obstacle to this lawsuit. This would be a dismissal without prejudice (see above).

Civil Rule 59 motions for summary judgment are filed after discovery has been completed. The same legal test is applied to the information obtained during discovery. I believe Heck v. Humphrey, 512 U.S. 477 (1994), the First Amendment and the requirement to prove actual malice to establish defamation constitute an insurmountable obstacle to this lawsuit. This would be a dismissal with prejudice ( the lawsuit could not be refiled).

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Featuring Piranha Mom and her Devastating Analysis of the Lawsuit against NBC

Friday, December 7, 2012

Featuring Piranha Mom, whom we have long known as the first Patricia who graciously changed her name on this blog to Piranha Mom to accommodate the new Patricia, posted the following comment at 5:12 am this morning.

I am featuring it today because it’s accurate, succinct, and I could not have said it better.

For those of you who want to read the SCOTUS cases that are the source of the legal rule defining the elements of a cause of action for defamation against a public official or public figure, the cases are New York Times v. Sullivan, 376 U.S. 254 (1964), which stated the new rule for cases involving public officials and Curtis Publishing v. Butts, 388 U.S. 130 (1967), which extended that rule to cases involving public figures.

I imagine that the defense will argue that NBC should not benefit from the relaxed legal standard of liability for a public figure because NBC’s defamatory and outrageous remarks made GZ a public figure. That argument is unlikely to prevail because, as Piranha Mom points out, he already had achieved that status and notoriety by stalking, confronting and shooting to death a peaceful and non-violent Black teenager named Trayvon Martin, who was armed only with a can of iced tea and a bag of Skittles while walking home in the rain talking to his girlfriend on his cell phone.

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Piranha Mom writes in response to Groans:

There is one simple reason to file this suit. It is to exploit the newly-released color photo, electronic enhancement and all.

Zimmerman suing NBC will be perceived as a David vs. Goliath contest in the public eye and MOM thinks the photo will be received sympathetically – although all it shows is a guy with a nosebleed (which may be self-induced) and most folks have seen nosebleeds in their day, and this is a minor one.

The public will not be impressed.

But that’s all this lawsuit is: an exploitive publicity stunt for Zimmerman and another attempt to influence potential jurors.

I worked as a political columnist and an investigative reporter in the political arena for four years. Won a slug of awards. Not that I was so good – but I had “the goods.” Every document. No guesswork.

The lines are clearly drawn as to what is permitted by journalistic ethics and The First Amendment. While The First protects our right to speak freely, note that the “the press” is given specific protection in it. Without a watchdog press there would no honesty in government.

Zimmerman has become a public figure – albeit, notorious – by his incessant self-publicizing. He does not get the protection a private person is granted. The quote applied to him was Zimmerman’s own words, truncated. He said those words.

Have you noticed that when Zimmerman was asked “Is he White, Black or Hispanic?” by Sean, the 311 dispatcher, Zimmerman did NOT say “I can’t tell. It’s dark and he’s wearing a hoodie,” which would have been the HONEST answer.

Oh no, right a way he had to proclaim “he … looks …. Black” with a hopeful note in his voice. That was the prey he was tracking, and he was doing a little salesmanship on Sean, to IMPRESS on Sean the necessity of dispatching a police officer.

Then, as Trayvon came in view, Zimmerman happily confirmed “And he’s a Black male!”

Zimmerman did everything except shout “Bingo!”

The press (and all media) are held to a higher standard in reports on private citizens because the media is so powerful. The ordinary citizen has no way to “clear” his name if, in fact, he has been wronged, because the ordinary citizen does not have the circulation or extended broadcast area the media have. Thus, “the retraction.”

Generally, when the media consider that reports have not met their “standards & practices” some form of retraction or statement of explanation will be issued, which NBC did. This was a clarification. This was not an admission of guilt. The Constitution protects the press when it makes errors – but it expects the media to correct their errors. That is all that is required by law And, in fact, this was no error – those were Zimmerman’s worrds. They canned the staffers for questionable editing judgment, and frankly, I think they feared “political” pressure. That’s internal, and we don’t have all the facts that went into their personnel decision.

But Zimmerman does not even get any level of protection against “errors” by the media – the media have to INTEND to do harm, if you are a public persona, which Zimmerman is, self-made though he may be. Referring to himself as a “leading citizen” doesn’t help his case – it emphasizes how difficult it would be to characterize himself as a “private citizen.”

He’s not. And if he can’t stand the heat, he and his attorneys should stay out of the press conferences and off the self-promoting websites. He said those words – conjecturing, at first that Trayvon was Black, without actually being able to see what color he was, then emphasizing it triumphantly as he spewed forth his venom against “fucking coons,” who “always get away.”

NBC made none of that up. They edited his words in the interest of time. They used no malice, and there was no deliberate intent to harm.

This is all just a publicity stunt.

Zimmerman has no case.

Yet Another Insult to Decency by the Defendant in the Trayvon Martin Murder Case

Just when I thought the defense could not possibly go any lower in the the Trayvon Martin murder case, it stooped to yet a new low with a frivolous lawsuit against NBC, Ron Allen, Lilia Rodriguez Luciano and Jeff Beasley.

The Complaint has or soon will be filed in the Seminole County Circuit Court and you can read it here.

The Complaint is 24 pages long, alleges two causes of action for defamation (libel) and intentional infliction of emotional distress (outrage), and seeks an unspecified amount of compensatory and punitive damages for making him one of the most hated men in America thereby destroying his reputation and his life.

George Zimmerman is the plaintiff and, under penalty of perjury, he reviewed and signed off on the Complaint averring that its contents are true.

For some strange reason, I found that hysterically funny.

Basically, the Complaint alleges that the three reporters, Allen, Luciano and Beasley, intentionally misrepresented and omitted statements made during the NEN call in order to falsely portray the plaintiff as a “hostile racist” who targeted Trayvon Martin because he was Black, “incite a national uproar,” and increase NBC’s ratings for their own material gain.

I found paragraphs 57 and 58 to be especially interesting because the Complaint alleges that the defendants falsely claimed that Zimmerman said “f____ coons” when they knew he said “f____ punks.”

Well, I listened to the recorded NEN call and it certainly sounded to me like he said “fucking coons.” Truth is a defense to defamation and intent to report the truth is a defense to outrage. So, too is the First Amendment and I do not believe this lawsuit will survive a motion to dismiss.

I find it ironic that GZ profited by more than $200,000 from the publicity generated by this case and now he is suing NBC and the three reporters who played a role in creating that publicity.

But the ultimate irony is that GZ is one of the most hated men America not because of adverse publicity but because he murdered an innocent Black teenager who was armed with only iced tea and Skittles. Then he had the chutzpah to steal Trayvon’s terrorized shrieking plea for help and to demonize him as a Black Ghetto Gangsta with murder in mind.

This lawsuit is yet another insult to decency because it is nothing more than the latest publicity stunt to propagandize a false narrative in an effort to poison the pool of potential jurors.