Defense mendacity in Zimmerman case is disgusting

May 24, 2013

Friday, May 24, 2013

Good morning:

George Zimmerman’s attorneys, Mark O’Mara and Don West, have unintentionally confirmed this week that they have no defense to present on his behalf by knowingly and intentionally publishing false, irrelevant and inadmissible information about Trayvon Martin to incite white racists to denounce him as a pot smoking black thug who deserved to die.

I used the word “confirmed” because three weeks ago the defendant appeared in open court and waived his right to an immunity hearing. The mixture of false and misleading information released yesterday is not a defense to second degree murder. It’s deliberate character assassination by false statement and innuendo of an unarmed teenager who was stalked, restrained and shot through the heart while screaming for help.

Here’s LLMPapa:

Last I heard, skipping school, pot smoking and participating in refereed fights between equal combatants is not a death penalty offense.

In other news, the defense attorneys filed a flurry of forgettable motions and responses to prosecution motions which, like snowflakes in April, are destined to melt when they hit the ground.

I begin with Donald West’s frivolous, dishonest and intentionally misleading reefer-madness motion that he filed earlier this week arguing that a trace amount of marijuana in Trayvon Martin’s autopsy blood should be admissible to prove that he was the aggressor even though he was unarmed and the defendant stalked, restrained and shot him in the heart.

The defense motion to continue:

1. cites no authority,

2. claims he needs to investigate Dr. Reich (the State’s audio expert who identified Trayvon as the person screaming for help), which takes about an hour if you google him,

3. claims other unnamed experts told him Dr. Reich’s opinion is based on science that has fallen into “disrepute,”

4. fails to support this assertion with an affidavit from one or more of these experts, and

5. claims he needs time to find an expert to hire even though he is supposedly in touch with all of these experts.

This motion is ridiculous and will be denied because it fails to document a reason for a continuance.

O’Mara’s motion for sanctions against Bernie de la Rionda for not disclosing the evidence that the defense obtained from Trayvon’s phone and published in its 3rd evidence dump, is frivolous because the so-called exculpatory evidence that he claims BDLR withheld in violation of the Brady rule is not exculpatory.

Therefore, the Brady rule does not apply and this motion should be denied.

West’s reply to the State’s motion to exclude opinion evidence about the defendant’s guilt or innocence generally admits that witness opinions about the guilt or innocence of a defendant are inadmissible but warns that if the State attempts to attribute the delay in arresting and charging the defendant (which isn’t relevant either), then the State will have opened the door to allowing the defense to call SPD cops to justify what they did.

I don’t believe this issue will come up as it is irrelevant to whether the defendant murdered Trayvon.

Sideline mini-trials about marginally relevant or irrelevant issues are exactly what evidence rule 403 is designed to prevent.

West’s 2-page reply to the State’s motion to exclude the defendant’s self-serving hearsay statements, which does not cite a case, generally agrees that many of the defendant’s statements are hearsay, if offered by the defense, but disagrees with the State’s argument that none of the defendant’s statements are admissible under the res gestae exception or some other exception to the hearsay rule. West asks Judge Nelson to reserve ruling until the issue comes up in trial.

This is a sneaky response because West wants to be able to ask a leading question seeking agreement from a witness that the defendant said XYZ. For example, he might ask SPD Investigator Serino this question:

George told you that he killed Trayvon in self-defense, didn’t he?

Bernie de la Rionda (BDLR) would object to the question because it contains an inadmissible self-serving hearsay statement.

Judge Nelson would sustain the objection, but she cannot unring the bell, so to speak. The jury would have heard the defendant’s inadmissible statement.

He also would probably like to mention that self-serving hearsay statement during the defense opening statement to the jury or maybe during jury selection.

The purpose of the State’s motion in limine regarding the defendant’s self-serving hearsay statements is to prevent those events from happening, and I am reasonably certain Judge Nelson has seen this trick before and is savvy enough to see through West’s tactical deception.

Therefore, I expect she will grant the State’s motion.

BTW, the res gestae exception that West mentions is a limited exception to the hearsay rule similar to the present-sense-impression exception in which the hearsay statement about an event occurs as the event happens. Thus, the statement is part of the event itself or the res gestae and cannot be excised from it.

The State’s motion in limine seeking an order prohibiting the defense from mentioning the voice stress analysis test that the defendant took should be granted because that’s the legal rule in Florida and elsewhere. The rule is based on the lack of general agreement among scientists that this type of test can consistently produce accurate and reliable results.

In other words, the test violates the Frye Rule.

Judge Nelson should grant this motion.

The State’s 3rd motion for a gag order asks Judge Nelson to put an end to the defense effort to poison the jury pool by assassinating Trayvon Martin’s good character with false evidence and innuendo publicized after the jury pool of 500 people have received their notices to report for jury service on June 10, 2013.

It is no accident that the defense waited until after the 500 potential jurors were served with their notices, but before they report for jury service. Therefore, this was a deliberate tactic to create an unringing the bell problem regarding false, irrelevant, and inadmissible evidence.

A gag order will not unring the bell.

This is quite possibly the sleaziest tactic that I have ever seen. To intentionally poison a jury pool a couple of weeks before trial with false and misleading information about the victim of a homicide calculated to incite and unite White racists to approve of the execution of an unarmed Black teenager is astonishing.

These two lawyers are fortunate that I am not Judge Nelson because I would jail them for contempt of court and file complaints against the bar association requesting their disbarment from the practice of law.


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Zimmerman: The Initial Decision Not to Charge Zimmerman Should Be The Subject Of A Separate Investigation

November 25, 2012

Hello, everyone.

Happy belated Thanksgiving to all of you. You nave not seen my fonts for a few days because we had family from out of town join us for Thanksgiving.

Question posed by Roderick2012.

Professor, could you write a post as to how you would question Serino if you were the State and O’Mara?

Serino seems like a big liability for the State and a gift for the defense given his contradictory statements and bad acts of leading witnesses and having leaked footage of Zimmerman to the media.

If you were BDLR how would you avoid the minefields and use him to get the evidence of Zimmerman’s re-enactment and Zimmerman’s police interviews into evidence?

I have been following the excellent comments and discussion about Serino, the deficient SPD investigation that he conducted and the apparent race and influence-driven decision by State’s Attorney Norm Wolfinger, SPD Chief Bill Lee and others not to charge Zimmerman with a crime. Regardless of the outcome in the Zimmerman case, that failed process must be thoroughly and transparently reviewed to identify what went wrong, why it went wrong, and recommend what should be done to make sure it never happens again.

No, I am not talking about appointing yet another committee to study a problem, minimize it, and assign blame to the proverbial rotten apple who is identified as the exception to an otherwise thoroughly competent and professional police department. I am disgusted by the use of strategies to identify and blame yet another fall guy and issue a false explanation of what happened that contains enough truth to plausibly deny the existence of widespread corruption and incompetence at the management and policy making level of an organization. Concealing the truth to protect and continue conducting business as usual will not solve any problems or restore citizen confidence in the ability of the police department to do its job. Instead, concealing the truth will promote cynicism and destroy faith in the ability of the police department to carry out its duty to enforce the laws without regard to race and privilege for the benefit of all of the people, rather than some of them. Citizen faith and confidence in the Sanford Police Department to ignore race and economic class while enforcing the laws is breaking down. Papering over the institutional and systemic problems that have been revealed in the discovery released to the public in the Zimmerman case, in effect, let the cat get out of the bag. Therefore, a denial of what we know to be true will further delegitimize the department.

I think that one of the most important lessons of the Zimmerman case is the realization that racism is alive and well in this country. An extraordinary number of people express racist opinions about Trayvon Martin and his family, for example, while vehemently denying that race played any role in accepting Zimmrman’s ghetto Black-gangsta defense. they are racist. Yes, indeed. We still have a long way to go before we eliminate racism in this country.

Now, to answer Roderick’s question, I do not believe that mentioning police misconduct will benefit either side. The defense needs to resist the urge to mention it because the misconduct benefited the defense at the expense of the truth and Trayvon Martin’s reputation. Asking the jury to acquit Zimmerman, despite overwhelming evidence of guilt, because some racist cops wanted to award Zimmerman a medal for killing a Black gangsta is not a winning argument. The prosecution has no reason to raise the subject because it has the evidence to convict Zimmerman.

Therefore, the Zimmerman trial will not be the appropriate forum to investigate and expose racism in the Sanford Police Department.

Zimmerman: How Should the Court Deal with Serino Telling Witnesses that Zimmerman Screamed for Help

November 4, 2012

How should the Court deal with Serino telling witnesses that Zimmerman was the person they heard screaming for help?

Should that evidence be admitted or excluded, and why?

To assist the discussion, I am going to provide context with an example that may come up during the trial.

Let us assume that Serino is the witness and O’Mara is cross examining him.

Q: When you interviewed the witness Mary Cutcher, you told her that the person whom she heard screaming for help was the person who survived, didn’t you?

A: Yes.

Q: And that person was George Zimmerman, correct?

A: Yes.

The prosecution is going to want to clean up this mess on redirect and here is an example of how that might be accomplished.

Q: Do you recall testifying on cross examination that you told the witness Mary Cutcher that George Zimmerman was the person who screamed for help?

A: Yes.

Q: Were you right or wrong about that?

A: I made a mistake. I was wrong.

Q: Please tell the members of the jury when and how you realized that you made a mistake?

A: I listened to a recording of a 911-call that I had not previously listened to and when I did, I could actually hear two different voices. Based on what I heard them say, I realized that I was mistaken.

Q: Showing you what has already been identified and admitted into evidence as State’s Exhibit 125, a recording of a 911-call that night, can you identify this recording?

A: Yes, State’s Exhibit 125 is the recording that I listened to when I realized my mistake.

Your Honor, may I play the recording for the members of the Jury.

The Court: You may.

Note that this potential scenario explains Serino’s error as an innocent mistake. For whatever reason, and he will supply the reason, he believed George Zimmerman was the person screaming for help.

What happens if he independently decided, or he was ordered to decide that George Zimmerman was the person screaming when he knew that was not true, or unlikely to be true?

Even if this scenario is what actually happened, I do not expect Serino will admit it and when you think about it, I do not believe the actual truth matters to the outcome of the Zimmerman trial.

In other words, even if Serino independently decided to attempt to convince witnesses that George Zimmerman was screaming for help, or he was ordered to do that, the identity of the person screaming does not change.

There are only two possibilities. Either Trayvon Martin or George Zimmerman uttered that terrified shriek and the jury can decide who it was by listening to the recording.

There really is no doubt and there never was any doubt because only two voices can be heard, one threatening and one pleading, and the shriek is punctuated with a solitary gunshot to the heart.

Therefore, police opinions and the expression of those opinions are not relevant. That is, they are not probative of Zimmerman’s guilt or innocence.

Therefore, you might reasonably expect the State to file a motion in limine (i.e., at the beginning of the trial) to prohibit the defense from mentioning or questioning witnesses about Serino’s efforts to persuade witnesses that Zimmerman was the person screaming for help.

If I were the judge, I would grant the State’s motion absent evidence from the defense that Serino’s error is relevant.

Note: I am not saying the issue of why Serino did what he did is not important. I believe it is very important and worthy of investigation to determine if it were an innocent mistake or evidence of a decision not to charge Zimmerman before the investigation was completed. There is more than a hint of corruption here and an investigation is warranted.

Zimmerman: Evidence of Police Corruption to Clear Zimmerman is not Evidence of Innocence

November 3, 2012

Cherokee Native said,

“Judge Nelson should have pointed out in her ruling that the SPD’s conduct that night was irrelevant to the state vs. zimmerman case – it is an argument for a different tribunal – and she should have issued a warning to O’Mara and West that attempts to taint the jury would result in sanctions”

I believe the police investigation at the crime scene and the way they interviewed witnesses, including Zimmerman, did not measure up to minimal standards of investigation. Serino was in charge and he should bear the responsibility for the mistakes. He also committed some of the most egregious errors when he told witnesses at the scene that the police had identified Zimmerman as the person who screamed for help.

Zimmerman also was permitted to clean up in the bathroom at the station house before he was questioned and photographs were taken.

“Correcting” eyewitness accounts and permitting the prime suspect to destroy possible evidence of a homicide are absolutely unacceptable errors and suggest to me that a decision had already been made to clear Zimmerman before he was transported to the station house for questioning.

A focused police search for evidence to support a decision not to charge a person with a crime in a suspicious death case before an investigation has been completed is an example of a preordained conclusion in search of a factual basis to support it.

That is a cover-up, not a competent police investigation.

O’Mara’s Motion for a Prophylactic Sequestration of Witnesses indicates that he may attempt to exploit the initial improper decision not to charge Zimmerman with a crime and the subsequent police search for evidence to support it as evidence that Zimmerman did not commit a crime and should not have been charged.

Good luck with that, Mr. O’Mara!

Evidence of police corruption to clear your client is not evidence of innocence.

I sincerely hope that you succeed in identifying the people responsible for the immensely corrupt outcome-driven cover-up of a homicide that directly benefited your client.

To avoid reinventing the wheel, you might want to go knock-knock-knocking on the FBI’s door for the keys to their confidential investigation file on the Sanford Police Department and the State’s Attorney’s Office for Seminole County. I doubt they will confirm or deny the existence of that file, but you should check anyway.

How ironic is it that the evidence you seek to exculpate George Zimmerman instead will reveal the internal corruption within the SPD and the Seminole County State’s Attorney’s Office that was responsible for the decision not to charge Zimmerman for murdering just another anonymous Black trouble-maker.

Too bad for George that the anonymous Black trouble-maker whom he targeted to kill turned out to be a real human being and a good one too, rather than the comic book Black gangsta he invented to conceal his predatory act.

If I recall correctly, Mr. O’Mara assured us that race had nothing to do with this case.

Memo to the file: It had everything to do with this case and it still does.

Zimmerman: O’Mara Adds Sanford Police Officials to Defense Witness List

October 25, 2012

Rene Stutzman reported late yesterday in the The Orlando Sentinel:

George Zimmerman’s lawyers Wednesday notified prosecutors that their witness list now includes a who’s who of the Sanford Police Department’s chain of command at the time of Trayvon Martin’s death, including the police chief, major crimes captain, sergeant and case detectives.


Wednesday’s defense witness list has on it a dozen names, including former chief Bill Lee; Bob O’Connor, the major crimes captain who oversaw the investigation; Lt. Randy Smith, the former sergeant who supervised the detectives investigating the case; and lead Investigator Chris Serino.

As I have written here and here, this hullabaloo is much ado about nothing, as far as the Zimmerman case is concerned.

The reason is that the opinions of the various individuals regarding the sufficiency of the evidence against Zimmerman are irrelevant and inadmissible at Zimmerman’s trial.

The scheduled depositions may have an impact, however, on the ongoing federal investigation into whether Zimmerman may have violated federal laws prohibiting hate crimes when he killed Trayvon Martin.

I said “may” because I suspect that the federal investigation may have widened to include investigating the identified individuals and others for conspiring to conceal Zimmerman’s commission of the murder by not charging Zimmerman with a crime.

I think they would be well advised to consult with counsel before their scheduled depositions to discuss whether they should assert the Fifth Amendment and refuse to answer any questions pertaining to the investigation and their respective roles.

I believe there is much more to this story, so no one should be surprised if the depositions are suddenly cancelled without explanation.

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