What to expect tomorrow at the hearings in the Zimmerman case

June 5, 2013

Wednesday, June 5, 2013

Good morning:

Except for RZ, Jr.’s unsupported claim that Dr. Alan Reich’s opinions are based on voodoo science, nothing new has been reported in the press today about the case.

Speaking of new, the purpose of a Frye hearing is to determine whether a new or novel scientific theory or methodology is generally accepted in the scientific community. If the answer to the question is “No,” evidence obtained using that theory or methodology will be excluded and the jury will never hear about it.

If the theory or methodology used is not novel or new, the evidence will be admitted and objections to the accuracy of the results will go to weight and not admissibility. In other words, the jury will determine how much weight to assign to the evidence.

I think the defendant’s objections go to weight rather than admissibility, since the technology used is not novel or new.

Therefore, I am predicting that Judge Nelson will deny the defense motion to exclude testimony by the defense audiologists, including Dr. Reich.

The other motion scheduled for tomorrow is the defense motion for sanctions and a judicial review of alleged prosecution discovery violations. This will involve a continuation of the hearing that began last Tuesday with Wesley West on the stand. West, the former Nassau County prosecutor who resigned due to differences of opinion with State Attorney Angela Corey last December, represents whistleblower Ben Kruidbos, the Fourth Circuit Director of Information Technology who is going to testify that Bernie de la Rionda had photographs and video from Trayvon Martin’s cell phone that he did not disclose to the defense.

As I have said before, “Who cares?”

BDLR turned over the BIN file to the defense back in January, but the defense did not hire anyone to extract it or purchase the software to do it themselves.

In addition, the information on the phone is not relevant, admissible or exculpatory and, in light of Mark O’Mara’s lie about a video supposedly depicting Travon laughing as his buddies beat up a homeless person, O’Mara should have the decency to withdraw the motion and apologize for filing it.

He will not do that, of course.

I would deny his frivolous motion and fine him, if not jail him for contempt, but Judge Nelson is nicer than I am, so she will just deny it or hold off on issuing a ruling until after the trial, which is what she did with the last defense motion for sanctions.

The testimony from the audiologists should be interesting and worth listening to. After they are finished testifying, I think O’Mara will deeply regret having asked for a Frye hearing.

This is a golden opportunity for BDLR to inform the jury panel, the nation and the world on the eve of trial that Trayvon uttered the death shriek.

The hearing is scheduled to begin at 9 am EDT.

We will live blog on the road via livestream from a motorcycle somewhere deep in Tennessee.

Ciao, baby.

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Please keep those donations coming.

We’ll need the gas money to get home.

Many blessings to all of you from

Fred and Crane


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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Fred


Zimmerman: Judge rules that evidence published by defense last week is not relevant or admissible

May 28, 2013

Tuesday, May 28, 2013

Good afternoon:

Judge Nelson denied the defense motion for a continuance of the trial.

None of the information about Trayvon, which caused the big hullabaloo last week after the defense improperly released it for publication to the Orlando Sentinel, will be admitted into evidence at the trial because all of it is irrelevant and inadmissible.

However, Judge Nelson granted O’Mara’s request for an evidentiary hearing on his motion for sanctions against BDLR for alleged discovery violations pertaining to that information. Unfortunately, she had to continue the hearing to June 6th because O’Mara did not have all of the witnesses he needed to present his case.

I do not believe that he has a legitimate argument, since the evidence is not admissible at trial or exculpatory, and the prosecution disclosed it to the defense in timely fashion back in January. O’Mara claims that the disclosure was not timely because he was provided with raw data that he could not interpret.

However, he specifically asked for raw data, which is a proper request, and he should have retained an expert and/or the software program that is used to interpret it. His failure to do that cannot be blamed on BDLR.

FYI: Defense counsel should routinely ask for raw data, since it is the actual result and less susceptible to misinterpretation. Note that O’Mara waited until after the panel of 500 potential jurors were summoned to jury service. His delay in filing his motion for sanctions suggests that he was more interested in gaining a tactical advantage with that motion than he was in obtaining an interpretation of the raw data.

Judge Nelson granted the defense request for a Frye hearing regarding the admissibility of expert testimony identifying the person who uttered the terrified death shriek. She scheduled the hearing for June 6th and 7th and will permit expert witnesses on both sides to testify by videophone.

The defense still has not endorsed any expert witnesses. Remains to be seen, if any legitimate experts will disagree with the State’s experts and if they have the money to pay an expert. I doubt that they do.

At a press conference after the hearing, Robert Zimmerman, Jr. aggressively promoted the conspiracy theory that I wrote about in my last post.

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I hate to hassle people for money, but contributions have been lagging this month.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

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Fred


Zimmerman: The defense must retain its own experts

May 5, 2013

Sunday, May 5, 2013

Good morning:

Amsterdam1234 provided the inspiration for this post with this comment:

@xena

About the contents of Trayvon’s phone. I listened very carefully to what was requested by the defense, and how the state responded to the requests concerning data on Trayvon’s phone.

The state gave defense 2 reports that listed some information found on Trayvon’s phone. They also gave all the raw data they were able to retrieve, to the defense.

During the hearing West was whining about not being able to read the data without special software. That defense team is an embarrasment. It is very obvious they haven’t hired a forensic digital data expert yet, and they are hoping to find out what was on that phone through the state’s forensic analysis of the data.

Bernie said “we’ve given them the data in the format they requested it, they can hire their own expert to analyze it.

Maybe one of you legal minds can explain what is work product and what is discovery that needs to be given to the defense.

For the following reasons, I believe the defense is committing malpractice by not employing its own team of experts to review all of the raw data and bench notes generated by the State’s experts.

The defense asked the State to turn over the raw data generated by all of the State’s experts and I believe the State has complied with that request.

This was an appropriate request that I would have made.

I specialized in forensics and I was more interested in the raw data and bench notes rather than an expert’s opinion, or interpretation of the raw data, because I was used to seeing interpretations that conflicted with or were not supported by the raw data and bench notes. If the lawyer does not have the raw data and bench notes to compare to the expert’s report, the lawyer has no way of evaluating the accuracy of an expert’s conclusions.

Literally, an expert’s report is worthless without the raw data and bench notes to support it.

Since the vast majority of criminal defense lawyers do not know squat about science and forensics, they would have no idea how to interpret raw data and bench notes. Most do not even know what bench notes are.

Given the alarmingly high rate of forensic fraud in public and privately owned and operated crime labs in this country, I believe every criminal defense lawyer absolutely must have the assistance of their own experts to review all of the raw data and bench notes generated by the State’s experts. This is so important that I believe a criminal defense lawyer cannot provide effective assistance of counsel to a client unless he does so. In other words, the failure to do so would potentially constitute a Sixth Amendment violation pursuant to the test set forth in Strickland v. Washington, 466 US 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

I say, “potentially,” because counsel’s failure to secure the assistance of an expert would have to have materially affected the outcome of the trial. That is, that it is more probable than not that the jury verdict would have been different if defense counsel had retained an expert.

Murder trials differ significantly from regular criminal trials in many ways. One of the most significant differences is the prosecution’s heavy reliance on forensic evidence to prove its case. This heavy reliance means that the forensic evidence will almost always qualify as material evidence that more probably than not affects the outcome. For this reason, I believe a criminal defense lawyer commits malpractice in a murder case, if he does not retain experts to review all of the raw data and bench notes generated by the State’s experts.

That is the only way to effectively evaluate the validity of the conclusions and opinions expressed by the State’s experts. Asking them to interpret their own data is worthless because they are not going to admit that the raw data does not support their conclusions.

This is why I said the defense did the right thing by requesting the raw data.

Of course, it’s useless to them, if they do not know how to interpret it.

This is why the defense should have assembled its own team of experts last summer to review all of the raw data and bench notes generated by the State’s experts. Of course, the assistance of its own expert would ordinarily not be necessary, if the conclusions and opinions of the State’s expert are exculpatory.

However, the defense has no reason to believe that any of the State’s forensic evidence is exculpatory since Bernie de la Rionda did not advise the defense that it was. Therefore, the defense has to assume that the evidence is not exculpatory and this means that it must retain its own experts to review all of the raw data and bench notes generated by the State’s experts. Obviously, that includes the raw data retrieved from Trayvon’s phone.

For this reason, I consider West’s whiny request for assistance from the State in understanding the raw data on Trayvon’s phone to be an admission of malpractice.

Aside from ignorance, the obvious problem for the defense is lack of money. However, the defense created that problem by not setting aside sufficient funds for experts.

The solution is to admit the egregious and grossly negligent mistake and apply to the court for the relief that the defendant is entitled to pursuant to Ake v. Oklahoma, 470 US 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). However, that would require a finding that the defendant is indigent. Apparently, he has too much pride to do that and his lawyers have too much pride to admit that they screwed up.

That brings us to where we are today, a little over 30 days before a murder trial with a stubborn defendant represented by two lawyers who do not know what they are doing.

Finally, Amsterdam1234 specifically asked about discovery violations.

The State has not committed a discovery violation and the defense should STFU and get its own expert instead of whining about not being able to comprehend the raw data retrieved from Trayvon’s phone.

_________________________________________________

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US media pushes false narrative that DD (Witness 8) lied in Zimmerman case

March 6, 2013

Wednesday, March 6, 2013

Exciting day yesterday with the defense decision to forego an immunity hearing. That was huge after all of the right-wing assurances that Judge Nelson was going to grant the defendant immunity from criminal prosecution and civil suits for damages.

I would be a rich man if I had a dollar for every claim that the prosecution lacked probable cause to charge the defendant with a crime and its case would never survive an immunity hearing.

One elderly Harvard law professor, who shall remain nameless out of respect for the lawyer he used to be, went so far as to accuse State’s Attorney Angela Corrie of being unethical for charging the defendant with murder 2.

Another lawyer who also shall remain nameless has been tweeting me for months telling me that this is the strongest self-defense he has ever seen and there is absolutely no way this case will survive an immunity hearing and go to trial. He expressed all sorts of creative and disparaging insults, some personal and some not, and mocked me for predicting that the defendant would be convicted.

I have been mocked, doxed, defamed, insulted, accused of being up on felony charges, faking my credentials and having sex with animals for calling it what it is; namely, an indefensible murder case. I have been doing that since I first read about it before charges were filed and we saw any discovery.

I still do not understand why what is so obvious to me is not equally obvious to everyone else, particularly to criminal defense lawyers who should know better.

Now, it should be obvious to everyone that the defense has no case. If the defendant had a legitimate claim of self-defense, the immunity hearing would have happened long ago and the defendant would be a free man.

The uncomplicated reality is that the armed defendant followed, confronted, attempted to detain, shot and killed an unarmed teenager who was walking home minding his own business while talking to his girlfriend on his cell phone.

By calling off the immunity hearing, the defense is finally admitting what should have been obvious to everyone for months.

I figured out months ago that this would happen so I was not surprised by the defense announcement yesterday.

The real eye-opener for me has been watching the media’s ongoing shameless effort since the hearing to downplay the significance of that decision while attempting to build up the significance of the prosecution’s admission that there are no hospital records that DD (AKA Witness 8) was in a hospital during Trayvon Martin’s wake or funeral.

At the press conference following the hearing, for example, one female reporter aggressively pressed the prosecutor, Bernie de la Rionda, to explain why he had not charged DD with perjury.

Now, I have heard a lot of stupid questions asked over the years, and even asked more than a few myself, but this one is quite possibly the dumbest one yet.

As I pointed out yesterday, there is no evidence that DD lied or committed perjury.

But even if she lied, and I am not conceding that she did, given the nature of the ambiguous questions she was asked, she certainly did not lie about a relevant or material matter regarding the homicide. Therefore, a perjury charge is not even a possibility.

Moreover, her alleged lie would not be admissible at the trial. The jury will not hear about it and the defense will not be permitted to mention it.

All of the media hullabaloo to create a false equivalency between DD’s alleged lie about going to a hospital instead of the wake or funeral and Shellie Zimmerman’s perjury charge for lying about her husband’s assets while under oath at a bail hearing is “baffling,” as Bernie de la Rionda snarked about the news that the defense was giving up on having an immunity hearing.

The only news organization to accurately report what happened at yesterday’s hearing was The Guardian in the UK.

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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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Defendant requests Trayvon Martin’s girlfriend’s medical records

March 4, 2013

Monday, March 4, 2013

The following motions are scheduled to be heard by Judge Nelson tomorrow beginning at 9 am EST.

1. Defendant’s Motion for Specific Discovery from the FDLE

This is a request for witness biographies (cover sheets) for each witness that, in addition to name, address, and contact information, list social security numbers, Experian credit reports, driving record, non-conviction arrest information and social media sites to which the witness belongs.

This is the FDLE’s memorandum in response to defendant’s request. The prosecution adopts the response as its own.

Comment: Good luck with that. Every criminal defense lawyer would love to have that information, but don’t bet the ranch that this request will be granted

2. Defendant’s Demand for Specific Discovery (3 videos)

Comment: This is a mystery request as I do not know what videos the defense is requesting.

3. Defendant’s Motion for Subpoena Duces Tecum to State Witness, Civilian Witness 8

MOM is requesting DD’s medical records “regarding any and all medical services rendered during the period 2/26/2012 through 4/30/2012” on the ground that the records “are reasonably calculated to lead to relevant admissible evidence.”

This is a conclusory request in the language of the rule that does not explain why he believes those records “are reasonably calculated to lead to relevant admissible evidence.”

Comment: I believe this request is a mean-spirited invasion of privacy to intimidate the witness and I would deny it in the absence of a reasonable explanation why MOM believes those records “are reasonably calculated to lead to relevant admissible evidence.” If Judge Nelson grants this motion, I think she will insist on reviewing the records in camera (chambers) and selecting what the defense will receive, if anything, according to the procedure she followed with the prosecution’s request for the defendant’s medical records.

Here is Judge Nelson’s 6-page order denying the defense motion to depose Benjamin Crump.

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

February 25, 2013

Monday, February 25, 2013

Good afternoon.

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

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

She heard the following exchange:

Trayvon: “Why are you following me for?”

Old Man: “Why are you here?”

She heard what sounded like a physical struggle.

Trayvon: Get off!

Then she lost the connection.

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

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

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

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

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

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

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

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

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

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


Tomorrow is Motion Day in the Trayvon Martin Murder Case

December 10, 2012

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?


Defense Raises Tempest in a Teapot in Trayvon Martin Murder Case

December 1, 2012

I write today about the defense motion for discovery filed yesterday in the Trayvon Martin murder case. Donald West wrote the motion and he is asking Judge Nelson to order the Martin family attorney, Benjamin Crump, to turn over the recording device with which he recorded his telephone conversation with Witness 8, whom we know as Dee Dee. That conversation occurred on April 2, 2012 and it is important to the case because she was telling him about her conversation with Trayvon on her cell phone when the defendant attacked Trayvon, mere moments before he shot him to death with a single gunshot to the heart.

Dee Dee was Trayvon’s girlfriend and she spent over 6 hours talking to and texting him the day the defendant shot him to death. She heard Trayvon describe the defendant as a “creepy man” who was following him for no apparent reason, a menacing man from whom he fled in fear. She heard him ask the defendant why he was following him and she heard the defendant respond by asking him what he was doing in the neighborhood. She heard what sounded like a scuffle with Trayvon yelling, “Get off me.” Then the connection went dead. We now know that the defendant fired the fatal shot mere moments later.

Mr. West relates in the motion that the State has provided the defense with a copy of the recorded telephone call between Mr. Crump and Dee Dee. However, Mr. West complains that the copy is very poor and mostly unintelligible. He wants a better copy and he wants it before he deposes Mr. Crump and Dee Dee.

He complains that the State says its copy is no better than the one he has and it claims it cannot force Mr. Crump to surrender the original recording device so that a new and possibly improved recording can be made.

This type of dispute is not unusual when third parties possess materials that the defense desires. The rules of discovery only require the State to turn over materials in its custody, possession or control. Here, the State is telling the defense that the material it requests is not within its custody, possession or control.

Presumably, Mr. Crump does not intend to part with the original recording or allow anyone to mess with it and potentially damage or destroy it.

The importance of the original recording to the defense is that it contains a statement by an important prosecution witness as well as potential evidence of coaching or tampering with the perception or memory of the witness by Mr. Crump, who was asking the questions. Now, mind you, there is no evidence or reason to believe that Mr. Crump attempted to pull a Serino and “correct” or change Dee Dee’s recollection. That is mere speculation in support of a defense request that prosecutors like to call a “fishing expedition.”

At this point, I do not believe that the defense has established that the copy it has differs from the copy that the State has or that the original copy that Mr. Crump has is any better. Seems like this could be determined in a reasonable and civilized fashion when the defense deposes Mr. Crump by playing the original and directing the court reporter to transcribe it. If the defense then wants to continue the deposition to another time to prepare questions for Mr. Crump about the recording, it may do so.

Basically, this is a tempest in a teapot and the defense needs to proceed with the depositions.


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