Zimmerman: Let there be thunder that makes the mountains tremble

May 4, 2013

Saturday, May 4, 2013

Good afternoon:

The defendant’s friend, Frank Taaffe, described the defendant’s state of mind the night that he stalked and killed Trayvon Martin.

He was mad as hell and he wasn’t going to take it anymore.

Given that Taaffe uttered this statement after he found out about the shooting, I believe we can reasonably assume that he believed the defendant pursued and confronted Trayvon with murder in mind.

Why did he believe that?

Why was the defendant so angry?

What was it that the defendant was not going to take anymore?

I have puzzled over Taaffe’s statement ever since I heard him say it.

Despite a lack of objective evidence that would support a belief that the gated neighborhood was besieged by burglars and thieves, the defendant appears to have believed that was actually happening, or he pushed that false narrative in hopes of creating a justification for the Homeowner’s Association to hire him to provide security.

He also appears to have believed that the burglars and thieves were Black and they always got away.

Frank Taaffe told us that the defendant was mad as hell about that and he was going to put an end to it.

The defendant said during the NEN call, “fucking coons,” and “these assholes, they always get away.”

This explains why he got out of his vehicle and hunted for Trayvon, ignoring the dispatcher’s request not to follow him.

Indeed, we can see by his actions that he was “mad as hell.” Acting as police officer, prosecutor, jury, judge and executioner the defendant decided that Trayvon was one “fucking coon,” one “asshole” who wasn’t going to get away.

A little over two minutes after the defendant ended the NEN call, after telling the dispatcher to have the officer call his cell phone when he arrived in the neighborhood, he hunted Trayvon down and shot him to death as Trayvon was telling Dee Dee about the creepy man who stalked and frightened him.

Trayvon never found out who he was or why he stalked and attacked him.

He died in the dark and cold rain begging for his life and shrieking in terror and disbelief.

Although Trayvon was a good kid, it would not have mattered if he were the Devil incarnate.

He was unarmed and he did nothing except try to escape from a creepy man who stalked him, first in a vehicle and then on foot.

The defense effort to demonize him and his family disgusts and infuriates me.

Demonizing Trayvon, even if successful, is not a defense and evidence of bad acts or character, assuming such evidence exists, is not admissible.

Defense counsel deserve harsh criticism and universal condemnation for pursuing this incredibly depraved and unnecessary course of action.

By attempting to exploit racial stereotypes and race-driven fear of Black males in a high publicity case, Mark O’Mara, Don West and everyone who supports what they do give us all a bad name.

Let there be thunder across this land that makes the mountains tremble,

Justice for Trayvon

_________________________________________________

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Thank you,

Fred


Using motions to disclose information in depositions is a sleazy tactic

April 3, 2013

Wednesday, April 3, 2013

Good morning.

I believe that we have completed our analysis and discussion regarding whether the use of doxing and breitbarting to intimidate and assassinate a person’s character constitutes witness intimidation, if used to discredit and intimidate a witness in a murder case.

The clear answer is “Yes.”

Moreover, I believe the two efforts by the defendant’s supporters to discredit and intimidate Dee Dee, which successively targeted two innocent girls named Dee Dee, constituted at the very least criminal attempts to intimidate a witness.

Since the perpetrators proudly declared their intent to intimidate the real Dee Dee when they mistakenly went after the wrong Dee Dees, and there is no doubt that the real Dee Dee found out about and was intimidated by those efforts, which were reported by the media, I believe the perpetrators already have committed at least two completed offenses of witness tampering.

I say “at least two,” because each lie, misrepresentation or threat is a completed crime. For example, 10 lies, misrepresentations or threats targeted against one witness constitutes 10 separate crimes or counts of witness intimidation.

Needless to say that the people who have committed these crimes are in deep trouble, even if they only get charged with attempted witness intimidation.

Are they stupid enough to continue their search for the right Dee Dee?

Only time will tell.

They have failed to demonstrate even a scintilla of intelligence, so I recommend against betting the ranch that they will stop.

By endorsing the CTH as a legitimate website and source of helpful information and ideas to use in defending GZ, Mark O’Mara has only himself to blame if the public associates him with the unlawful efforts to intimidate Dee Dee.

* * * *

Now, I want to take a look at O’Mara’s use of motions to disclose information that should not be disclosed.

Xena raised this issue yesterday when she asked me if depositions are supposed to be released to the public.

I replied that the answer is “No.”

She responded,

Thank you. O’Mara did manage to get in parts of one — IIRC, Santiago, that he included as an Exhibit with a Motion.

I believe O’Mara has been deliberately publicizing information, which he knows should not be publicized, by appending it to a marginally appropriate motion that he creates to serve as a vehicle to publicize the information in a manner that provides him with plausible deniability.

In other words, he has not been filing these motions in good faith.

He then incorporates the publicized information into his propaganda campaign to win the case in the court of public opinion.

For example, despite knowing that a police officer’s opinion regarding the defendant’s guilt or innocence is inadmissible at trial, he publicized Santiago’s deposition to support his propaganda claim that the Sanford Police Department believed the defendant killed Trayvon in self-defense.

Fortunately, BDLR quickly shut him down in court when he handed him Serino’s three or four drafts of the Capias request in which Serino considered charging the defendant with murder or manslaughter and ultimately settled on manslaughter.

I think it’s pretty clear that O’Mara was attempting to create and exploit a difference of opinion regarding the defendant’s innocence between the local SA and hometown police department versus the Jacksonville SA and the FDLE. I think he hoped to hijack and derail the jury inquiry into an are-you-going-to-trust-and-believe-your-hometown-law-enforcement-officials or the outsiders that the governor was forced to select for political reasons unrelated to what actually happened.

Notice that despite not mentioning race, that particular strategy is all about exploiting racism. The argument is little more than a transparent dress concealing a bloated and maggot infested corpse.

This is a good example of what lawyers mean when they refer to “playing the race card.”

I have to admit that I am fantasizing that there will come a day when O’Mara schedules a press conference and no one shows up.

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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.


The Prosecution did not violate the Brady rule in Zimmerman case

March 30, 2013

Saturday, March 30, 2013

Good morning everyone.

I realized at approximately 3:30 am this morning that I forgot to mention several extremely important points in the articles and comments that I have posted recently about the Brady rule and the timing of the exculpatory evidence disclosures to the defense.

The Brady rule imposes an obligation on the lead prosecutor and case agent in each case to periodically review the case file for the specific purpose of identifying exculpatory evidence. Since police investigations typically continue until a final order terminates a case after verdict and sentencing, a case file will continue to grow documenting the investigation and the discovery of new information. Prosecutors also add their stuff to the file. This feature of the criminal justice system frustrates judicial efforts to establish a uniform drop-dead deadline by which the prosecution must disclose exculpatory evidence to the defense in any given case.

Therefore, the general practice is to disclose exculpatory evidence to the defense as soon as practicable after it has been obtained and identified. One might reasonably expect to see multiple disclosures of exculpatory evidence prior to trial and even during trial.

A major exception to this practice was developed to deal with unusual or exceptional circumstances that warrant delaying the disclosure of exculpatory evidence to the defense until the defense must have it to prepare for a deposition, pretrial hearing or the trial.

We have that situation in this case due to the well documented need to protect the privacy and safety of W8 (Dee Dee) from harassment and intimidation by the defendant’s supporters.

The vast majority of Brady violations involve situations where the prosecution had exculpatory evidence, but never disclosed it to the defense. In most cases a new team of defense investigators independently discovers the exculpatory evidence several years later during the run-up to filing a state or federal habeas petition after the judgment and sentence of the trial court was affirmed by appellate courts.

Tthe Brady rule requires a showing that the exculpatory evidence withheld from the defense was so important that the outcome of the trial likely would have been different, if the prosecution had disclosed it to the defense before trial. In other words, absent a showing of materiality, the prosecution’s failure to disclose exculpatory evidence in any given case will be deemed harmless error.

Finally, the importance or materiality of that exculpatory evidence relative to rest of the evidence admitted at trial cannot be determined until after the trial has concluded.

For this reason alone, the defense claim that the prosecution violated the Brady rule should be summarily dismissed as premature, impossible to determine, and frivolous.

Nevertheless, let us briefly review the available facts to see if the timing of the prosecution disclosure disadvantaged or prejudiced the defense.

There is no evidence that it did.

ASA John Guy contacted MOM the evening before the court hearing in early March and told him that there were no hospital records to confirm Dee Dee’s statement that she did not attend the funeral and the wake because she was in the hospital.

Because of that disclosure, the judge ruled that the defense motion for a subpoena duces tecum of Dee Dee’s hospital records was moot.

The defense deposition of Dee Dee a week later could not have been adversely affected by the timing of the disclosure because the defense had the information for a week and used it to question Dee Dee.

The trial is still three months down the road, so I do not see any possibility of prejudice to the defense from the timing of the disclosure.

In conclusion, I do not see any prejudice to the defense caused by the delay between the defense request for the hospitalization records last fall and the recent disclosure.

As I have already mentioned, the prosecution has legitimate reality-based concerns to protect the privacy and safety of Dee Dee. I refer of course to the concerted effort by the defendant’s supporters to successively intimidate two girls whom they mistakenly believed to be the real Dee Dee.

Therefore, the delay in disclosing the evidence requested by the defense not only failed to harm the defense, it was reasonable and necessary to protect Dee Dee.

For all of these reasons, the defense motion is frivolous and should be denied.

Finally, the responses by the two reporters for the Orlando Sentinel and the national media to BDLR’s response to the defendant’s frivolous motions demonstrated that they have not yet grasped the facts in this case and the simple truth that the defendant has no defense.

Pathetic fail.

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Featuring: LLMPapa’s video: Dee Dee’s story

March 26, 2013

Here’s LLMPapa again:

Several months ago, I removed the questioning and interaction of Bernie de la Rionda from the audio of DeeDee’s statement in order to hear her story in a narrative format. The following is her story of the last few moments of her childhood friend’s life.

In June of this year, when called, I believe this young girl will rise and stand tall with a strength of purpose and resolve born of the knowledge that her story needs to be heard.

Listen to her words and answer, for yourself, the question I’ve raised at the end.

Personally, I don’t think there’ll be a dry eye in the house.

I plan on being there.

I’ll let you know.


Trayvon Martin: The prosecution is not crumbling

March 26, 2013

Tuesday, March 26, 2013

Now that W8 (Dee Dee) has apparently admitted during the defense deposition on March 13th that she lied when she told Benjamin Crump during a telephone interview and later confirmed to BDLR that she did not go to Trayvon Martin’s funeral because she was sick and went to a hospital, the inevitable question is:

How might this affect the trial?

First, do not expect to see her charged with perjury because BDLR’s question was ambiguous (i.e., went to a hospital or someplace) and her answer was not material (i.e., important enough to affect the outcome of the trial).

Second, let’s take a look at how this admission might come out at trial.

BDLR would ask her if she attended the wake or the funeral and she would answer, “No.”

BDLR would then ask her why not and she probably would answer that she was too upset and could not handle it.

Assuming for the sake of argument that the prosecution either did not move in limine (i.e., before the trial begins) to prohibit the defense from pursuing this line of inquiry pursuant to Rule 608(b) or if it did, Judge Nelson denied the motion, BDLR would have the option to end that line of inquiry (i.e., permitting the defense to bring it out on cross) or to proceed further and reveal her lie).

Any experienced prosecutor, and BDLR is experienced, would elect to reveal her lie in the least damaging manner possible rather than allow the defense to bring it out on cross in the most damaging manner possible.

This is how it might work:

BDLR: Do you recall Benjamin Crump interviewing you by phone in March of last year regarding your cell phone conversations with Trayvon before the shooting?

DD: Yes.

BDLR: Do you recall him asking you, if you went to Trayvon’s wake and funeral?

DD: Yes.

BDLR: What, if anything did you tell him?

DD: I told him that I did not go to either one.

BDLR: Was that truth?

DD: Yes.

BDLR: Did he ask why you did not go the funeral and the wake?

DD: Yes.

BDLR: What did you tell him?

DD: I told him I was sick and went to the hospital.

BDLR: Was that the truth?

DD: No.

BDLR: What was the truth?

DD: I was too upset and could not handle it.

BDLR: Why didn’t you tell him that?

DD: I did not want to admit to his mother that I was not strong enough to be there for her.

BDLR: Are you referring to Sybrina Fulton?

DD: Yes.

BDLR: Was Trayvon’s mother present when Mr. Crump interviewed you?

DD: Yes, she was in Mr. Crump’s office listening over the speaker phone.

BDLR: How did you know that?

DD: Mr. Crump introduced her and she said, “Hello.”

BDLR: Did there come a later time when I interviewed you in person?

DD: Yes.

BDLR: Do you recall when that was?

DD: I think it was about a month later.

BDLR: Was Trayvon’s mother present when I interviewed you?

DD: Yes, she gave me a ride to the office where you interviewed me and she sat next to me the whole time.

BDLR: Did you swear to tell the truth and nothing but the truth during the interview?

DD: Yes.

BDLR: Did I ask you if you went to the funeral and the wake?

DD: Yes.

BDLR: What did you say?

DD: I lied and told you that my blood pressure was very high and I went to the hospital instead.

BDLR: Do you suffer from high blood pressure?

DD: Yes.

BDLR: Why did you lie to me?

DD: I did not want to admit to Trayvon’s mother that I could not deal with what happened to Trayvon. I could not handle seeing him dead or in a casket, so I lied to her and to Mr. Crump.

BDLR: Are you sorry that you lied?

DD: Yes.

BDLR: Have you apologized to Trayvon’s mom and dad.

DD: Yes.

BDLR: Did you love Trayvon?

DD: Yes, I still do.

BDLR: Do you miss him?

DD: Yes, very much.

BDLR: Thank you. Your witness, counsel.

Picture this scene taking place before a jury in a crowded courtroom in June with a nation and the world looking on, after the prosecution has introduced all of its damning evidence against the defendant, including the medical examiner’s testimony using graphic color photos taken during the autopsy, as this young woman confesses her love and affection for Trayvon while baring her soul and tearfully confessing to her overwhelming sense of loss, responsibility, confusion, weakness and guilt.

If BDLR conducts the direct examination properly, as I believe he will, the best cross will be no cross. The jury will not take kindly to a defense attorney picking on her and prolonging her agony.

Finally, do not forget that the phone records and the other evidence in the case will independently confirm everything else she says about her conversation with Trayvon.

One understandable simple lie by Dee Dee is relatively unimportant compared to the vast ocean of lies uttered by the defendant in this case.

Is the prosecution crumbling? I don’t think so.

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Defense files pretty glittering balloon to keep hope alive in Zimmerman case

March 26, 2013

Tuesday, March 26, 2013

The defense filed a specious motion yesterday afternoon in the Zimmerman case seeking a sternly worded judicial rebuke of alleged prosecutorial misconduct, imposition of terms (i.e., a fine), and attorney’s fees.

This is yet another whining complaint about W8’s (Dee Dee) statement that she did not attend Trayvon Martin’s funeral because she was not feeling well and went to the hospital.

I think it is an attempt to distract the public’s attention from the defense decision several weeks ago to forego an immunity hearing, thereby implicitly admitting that it has no defense. Instead, by resorting to the well known propaganda technique of repetition while aided and abetted by a compliant media ever so eager to repeat anything they say, regardless of merit in the self-interest of securing higher ratings and increased profits by providing so-called “balanced” coverage that promotes the illusion of a legitimate defense, the defense seeks to link the words “liar” and “perjurer” with Dee Dee so that the public, and hopefully the jury, will already have decided to disregard her testimony.

Watch the pretty glittering balloon and for God’s sake don’t you dare look at my hands.

In this latest iteration of the Dee-Dee-is-a-liar mantra, the defense asserts that she admitted during her deposition on March 13th that she lied about going to the hospital when Benjamin Crump interviewed her last March and later to Bernie de la Rionda because Trayvon’s mother, Sybrina Fulton, was present.

The defense claims that this revelation constitutes exculpatory evidence that the prosecution knew about and should have disclosed to the defense months ago. Of course, the defense would have known this information months ago, if it had bothered to depose Dee Dee, so the defense claim is specious.

As I have previously pointed out, Dee Dee’s admission that she lied about going to the hospital is not material, so it cannot be the basis of a perjury charge as it does not make it more or less likely that the defendant acted in self-defense when he killed Trayvon Martin. It’s what lawyers and judges call impeachment on a collateral matter.

I am certain Mark O’Mara and Don West know this and I believe it’s unfortunate that they have repackaged their war against Dee Dee as unethical prosecutorial misconduct.

When Judge Nelson inevitably denies the defense motion, can we expect the defense to follow-up with a motion to recuse herself from the case?

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Defense renews request to depose attorney Benjamin Crump

March 18, 2013

Monday, March 18, 2013

Greetings to everyone.

Due to circumstances beyond my control, I have not posted any articles since last Monday. The short story is both of our computers crashed. The electrical plug-in for my Toshiba laptop broke transforming the computer into the most expensive paperweight that I have ever owned. I bought it last November and was delighted with it until this happened. I have since discovered that this problem was caused by a mechanical design flaw common to all Toshiba laptops. The plug-in connects to a little box just inside the chassis. The box is soddered to the motherboard and cannot withstand any stress, such as plugging the electrical cord into the computer on a daily basis. Even an insubstantial bump to the plug-in can jar the little box loose. Customers have to mail their computers to Toshiba for repair. The minimum turn-around time is 3 weeks and Toshiba lately has been blaming their customers for causing the damage, refusing to fix them for free, and holding the computers hostage until they receive payment.

Needless to say, I have been exploring other options.

I have decided to fix it myself by gluing the box into the correct position with expoxy.

Imagine me screaming the most foul curses of which I am capable awakening monster cyber demons from their slumber and you will have a pretty good idea of what I have been doing for the past week.

And, of course, Crane’s computer just had to go on the blink to show solidarity with her sister. Well, we have solved that problem. I am posting this article with her computer and plan to resume daily postings.

I still have to review the comments you all have posted. Hope no wars have erupted.

Now, back to business.

Mark O’Mara filed a motion on Friday asking Judge Nelson to reconsider her order denying the defense motion depose Benjamin Crump. He basically accuses Crump of lying in his affidavit about the circumstances of his telephonic interview of Dee Dee.

He also states that John Guy, the prosecutor assisting BDLR, informed him that there are no medical records confirming Dee Dee’s claim that she in the hospital unable to attend Trayvon’s funeral. He comes very close to accusing Dee Dee of perjury without specifying when she committed the offense or explaining why he believes that what she may have stated is relevant or material to the case.

I doubt that expects to win this motion. I think he is attempting to create a credibility issue where none exists regarding a relatively unimportant witness’s credibility on a collateral matter.

I do not believe Judge Nelson will change her mind and authorize Crump’s deposition, but I would not be surprised if she does. Judges generally tend to be concerned about maintaining an appearance of fairness, so she might reverse herself. I am certain that she wants to avoid Judge Lester’s fate. Therefore, regardless of her decision, I expect she will will attempt to make her decision bullet-proof.

The unstated assumption or premise of the defense motion appears to be a suspicion that Crump told Dee Dee what to say and he did that to create a murder case against the innocent defendant hoping that the jury would convict him thereby setting up the civil suit for wrongful death.

To be taken seriously, I think he is going to need evidence to support his suspicion and a credible argument that the information he seeks is material and relevant.

I do not believe he can get there from here.

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Witness 8 (Dee Dee) did not commit perjury

March 9, 2013

Saturday, March 9, 2013

Good morning:

Today, we are going to take a tour of the Florida perjury statutes to clear up any lingering confusion caused by the troll yesterday regarding the law and its possible application to DD.

EDIT: H/T to Fauxmccoy for her excellent discussion of this issue last night in an effort to educate a willfully dumb troll whom I subsequently banned for derailing discussion. As the owner of the blog, I decided that I had an obligation to step in as an authority on the subject to clean-up the mess created by the troll, even though her ladyship did a mighty fine job of that herself.

Keep in mind that I believe the evidence will show that she did not lie about anything, much less commit perjury and I believe the U.S. media has been grossly irresponsible in reporting that she did. Nevertheless, the false accusation has been made and I am going to hopefully refute and bury it forever.

Introduction

Keep in mind that all federal and state crimes are defined by statutes passed by both houses of a bicameral legislature and signed into law by an executive (president or governor). They are enacted pursuant to the police power granted to the legislative body by the federal or state constitution.

Federal courts have jurisdiction to decide cases involving violations of federal offenses and state courts have jurisdiction to decide cases involving violations of state offenses.

All criminal statutes consist of elements that the prosecution must prove beyond a reasonable doubt to convict a defendant. The elements consist of a particular state of mind (mens rea) and a prohibited act (actus reus).

The Florida perjury statute sets forth two general categories of offenses: perjury and false statements. Perjury is the more serious offense because it consists of the base offense (a false statement) with additional elements (oath and subject matter materiality).

Perjury is subdivided into 3 categories: perjury in official proceedings, perjury not in official proceedings and perjury by contradicting statements.

The false statements category also is subdivided into 3 categories: false reports to law enforcement authorities, false information to law enforcement during an investigation, and false official statements.

Notice that the basis for distinguishing these false-statement offenses from ordinary everyday lying is the element of the offense that specifies to whom the lie is communicated.

That is, mere lying is not a criminal offense.

Now, let us take a look at each of the offenses beginning with the false statements that define the boundary between lies without criminal consequences and lies with criminal consequences.

False Statements

False reports to law enforcement authorities (FL. Stat. 837.05)

(1) Except as provided in subsection (2), whoever knowingly gives false information to any law enforcement officer concerning the alleged commission of any crime, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Whoever knowingly gives false information to a law enforcement officer concerning the alleged commission of a capital felony, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

This offense consists of knowingly providing false information to a law enforcement officer concerning the alleged commission of any crime. This conduct is defined as a first degree misdemeanor, unless the crime in question is a death penalty offense, in which case the offense is a third degree felony. No crime is committed if the false information is provided to someone who is not a law enforcement officer.

Note that even if DD lied to BDLR about going to the “hospital or someplace” and he qualifies as a law enforcement officer, the false statement did not concern the alleged commission of a crime. Therefore, she did not violate this offense.

False information to law enforcement during investigation. (FL. Stat. 837.055)

(1) Whoever knowingly and willfully gives false information to a law enforcement officer who is conducting a missing person investigation or a felony criminal investigation with the intent to mislead the officer or impede the investigation commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Whoever knowingly and willfully gives false information to a law enforcement officer who is conducting a missing person investigation involving a child 16 years of age or younger with the intent to mislead the officer or impede the investigation, and the child who is the subject of the investigation suffers great bodily harm, permanent disability, permanent disfigurement, or death, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

This offense is more specific because it contains additional elements that must be proven. The prosecution not only has to prove that the speaker knew the information was false, it has to prove that the speaker acted willfully. It also has to prove that the law enforcement officer was conducting a missing person investigation or a felony criminal investigation, and the speaker provided the false information with the intent to mislead the officer or impede the investigation.

The distinction between the misdemeanor and the felony version of this offense is that the felony adds two elements; namely, the missing person must be a child 16 years of age or younger and the child suffered great bodily harm, permanent disability, permanent disfigurement, or death.

DD did not violate this statute because it is about a missing person investigation.

False official statements. (FL. Stat. 837.06)

Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Here we see that the foundational requirement of the false-statements offenses (i.e., to prove that the defendant knowingly communicated false information to a law enforcement officer) requires additional proof that the communication is in writing with the intent to mislead a public servant in the performance of his or her official duty.

DD did not provide a written statement so she did not violate this statute.

Now, let us move on to the perjury offenses.

Perjury

Perjury in official proceedings. (FL Stat. 837.02)

(1) Except as provided in subsection (2), whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding that relates to the prosecution of a capital felony, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Knowledge of the materiality of the statement is not an element of the crime of perjury under subsection (1) or subsection (2), and the defendant’s mistaken belief that the statement was not material is not a defense.

This statute requires the prosecution to prove that the defendant made a false statement under oath in an official proceeding regarding a material matter while believing that the statement was not true.

Note that while the false statement must be about a material matter, the prosecution does not have to prove that the defendant knew that the statement was about a material matter. Put another way, lack of knowledge that the statement was about a material matter or a mistaken belief that it was not about about a material matter is not a defense. This is where yesterday’s troll got lost in the woods, never to be seen or heard from again.

A material matter is defined as “any subject, regardless of its admissibility under the rules of evidence, which could affect the course or outcome of the proceeding. Whether a matter is material in a given factual situation is a question of law.” 837.011(3) This means that the subject matter of the false statement can be material even if it is not admissible. Put another way, materiality does not depend on admissibility.

As I said in my post about DD’s statement under oath to BDLR, even if we assume that she lied about going to “the hospital or someplace,” the subject matter of her statement was not material because whether she went to the hospital “could not affect the course or outcome of the trial.” As such, it is a collateral matter.

An Official proceeding is defined as “a proceeding heard, or which may be or is required to be heard, before any legislative, judicial, administrative, or other governmental agency or official authorized to take evidence under oath, including any referee, general or special magistrate, administrative law judge, hearing officer, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with any such proceeding.” 837.011(1)

BDLR’s interview of DD also did not qualify as an “official proceeding.” Therefore, DD did not violate this statute, even if she lied under oath about going to “the hospital or someplace.”

Perjury when not in an official proceeding. (FL Stat. 837.012)

(1) Whoever makes a false statement, which he or she does not believe to be true, under oath, not in an official proceeding, in regard to any material matter shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant’s mistaken belief that his or her statement was not material is not a defense.

Proof of this offense eliminates the official-proceeding element while retaining the materiality element.

Therefore, DD did not violate this statute either.

Perjury by contradictory statements. (FL Stat. 837.021)

Note: This is not applicable. I provided it FYI, so you can skip down to the conclusion or read it according to your wishes.

(1) Except as provided in subsection (2), whoever, in one or more official proceedings, willfully makes two or more material statements under oath which contradict each other, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Whoever, in one or more official proceedings that relate to the prosecution of a capital felony, willfully makes two or more material statements under oath which contradict each other, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) In any prosecution for perjury under this section:

(a) The prosecution may proceed in a single count by setting forth the willful making of contradictory statements under oath and alleging in the alternative that one or more of them are false.

(b) The question of whether a statement was material is a question of law to be determined by the court.

(c) It is not necessary to prove which, if any, of the contradictory statements is not true.

(d) It is a defense that the accused believed each statement to be true at the time the statement was made.

(4) A person may not be prosecuted under this section for making contradictory statements in separate proceedings if the contradictory statement made in the most recent proceeding was made under a grant of immunity under s. 914.04; but such person may be prosecuted under s. 837.02 for any false statement made in that most recent proceeding, and the contradictory statements may be received against him or her upon any criminal investigation or proceeding for such perjury.

I included this section about multiple contradictory statements FYI, although it is not relevant at this time.

Conclusion

DD did not violate any of these statutes, even if she lied to BDLR about going to “the hospital or someplace,” instead of going to the funeral or wake.

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Witness 8’s (Dee Dee) alleged lies do not matter

March 7, 2013

Thursday, March 7, 2013

I write today to remind everyone that DD is not a critical prosecution witness because they can win this case without her testimony and her alleged lies about her age and whether she went to a hospital, instead of the funeral, probably are not admissible.

She is not a critical prosecution witness because the physical evidence, forensics, location of Trayvon’s body and the spent shell casing, and the defendant’s conflicting and inconsistent statements bury him beneath a mountain of evidence.

Although we will not know until trial, I am anticipating that the defendant’s interlocking phone calls with others before and after he killed Trayvon will eliminate any lingering doubt that anyone might have about his guilt. Even if it does not, I do not believe the prosecution’s case will be in any jeopardy.

BDLR will likely wait to call DD until late in his case after he has put in all of the evidence that he believes he needs to introduce in order to convict the defendant. With everything else in place, her testimony will merely confirm what everyone on the jury already knows. The jury likely will believe her because her testimony will be self-authenticating. That is, even though she had never been to the RTL, everything that she says Trayvon told her will be confirmed by the interlocking phone records of the calls she had with Trayvon, the physical layout of the place and the weather.

Because most of Trayvon’s statements to her are inadmissible hearsay, unless he was relating a present sense impression or excited utterance, which are two exceptions to the hearsay rule, I expect her testimony will be limited to he told her that,

(1) he was afraid of the creepy guy following him in the car;

(2) he ran to get away from him; the creepy guy suddenly showed up on foot; and

(3) he asked someone why he was following him;

Then she heard an older male voice respond, “What are you doing here?”

Then she heard what sounded like physical contact followed by Trayvon shouting, “Get off me,” and the phone went dead. She attempted to call him, but he did not answer.

That’s it. She does not know anything else.

The defendant’s supporters with considerable support from the lame-stream U.S. media and various lawyer-pundits who should know better have been saying things like, “The prosecution’s case is crumbling,” because Witness 8 (DD) lied or committed perjury,

(1) about her age; and

(2) when she claimed that she did not attend Trayvon’s wake or funeral because she was not feeling well and went to a hospital.

The prosecution’s case is not crumbling.

First, even assuming she lied, and I do not believe that she did, she most certainly did not commit perjury because neither of her statements are about matters that are material or important to the outcome of this case. Since materiality is an element that must be proven beyond a reasonable doubt to convict someone of perjury, there is no basis to charge her with that offense.

Second, the two alleged lies do not make it more or less likely that she is an untruthful person since a truthful person may lie about their age or when providing an excuse for not attending a funeral.

The rules of evidence permit Judge Nelson to exercise her discretion in deciding whether to permit the defense to cross examine DD about these two alleged lies.

The relevant rules of evidence are 608(b) and 403.

Evidence Rule 608(b) prohibits evidence of specific instances of the misconduct of a witness for the purpose of attacking her credibility, unless those specific instances of misconduct concern her character for truthfulness or untruthfulness.

(Emphasis supplied)

Evidence Rule 403 provides that even relevant evidence may be excluded if the judge finds that its probative value “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

(Emphasis supplied)

I can see Judge Nelson deciding that the slight probative value of the two alleged lies that she is an untruthful person is overwhelmed by their potential prejudice, since the alleged lies have nothing to do with any issues in the case, and her testimony is self-authenticating.

The admissibility of evidence about these two alleged lies probably will be the subject of a motion in limine by the prosecution for an order to prohibit the defense from mentioning them in front of the jury or cross examining her about them.

Even if Judge Nelson denies that motion, the prosecution can minimize the potential damage of that evidence by bringing it out on direct and asking her to tell the jury why she did not tell the truth about those two matters.

The defense would have to be careful cross examining her because the jury might not like it, if they do not treat her in a respectful manner.

When all is said and done by the witnesses and the lawyers, and the jury retires to deliberate on a verdict, I doubt that DD’s credibility will be a matter of any concern or discussion regarding whether the defendant killed Trayvon in self-defense.

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