The Defendant’s Statements will be Admissible by the Prosecution in the Trayvon Martin Murder Case

January 26, 2013

Saturday, January 26, 2013

I predict the defendant’s statements to police will be admissible against him at his immunity hearing and his trial.

The legal test will be whether he knowingly, intelligently and voluntarily waived his rights to remain silent and submit to police interrogation without counsel present. The SCOTUS established this test in Miranda vs. Arizona, 384 U.S. 436 (1966).

The defendant gave multiple statements to police investigators. Each statement was videotaped.

Before answering any questions, he reviewed, initialed and signed the standard form acknowledging that he had been advised of his rights to remain silent and to have an attorney present while being questioned and his decision to waive those rights and submit to questioning.

There is no evidence on the videotapes that the police confronted, threatened or intimidated him in any way and they permitted him to go home after interviewing him the first night. Moreover, there is no evidence that they used any trick, lie or ruse to get him to talk. Therefore, his statements will be admissible pursuant to Miranda.

Some of you have commented that his attorneys might move to suppress his statements on the grounds that he suffered from post traumatic stress disorder (PTSD) and he had been diagnosed with attention deficit hyperactivity disorder (ADHD) for which he was taking Adderall.

These mental disorders normally do not prevent a person from knowing that police are about to question them regarding their possible guilt in committing a crime and they have a right to refuse to answer any questions or insist on having a lawyer present during questioning. So long as they understand what they are being told, they can agree to waive those rights and submit to questioning. Absent persuasive evidence to the contrary from a duly qualified mental health expert, PTSD and ADHD would not prevent a person from knowingly, intelligently and voluntarily waiving those rights.

The defense has not filed a motion to suppress the defendant’s statements and I am not expecting such a motion.

Since the prosecution will want to use the defendant’s statements to prove his guilt, you might see BDLR file a motion asking the Court to rule that he can do that. To win the motion, he will have to convince Judge Nelson that the defendant’s statements were knowingly, intelligently and voluntarily made after advice and waiver of Miranda rights. Lawyers refer to this procedure as laying a proper foundation for the admissibility of the statements.

For the reasons I have stated, I expect Judge Nelson will grant the prosecution motion. The defense either will have no objection or its objection will be overruled (i.e., denied).

Keep in mind that the prosecution can introduce any of the defendant’s statements as admissions by a party opponent, but the hearsay rule prevents the defense from introducing any of them.


Was Trayvon Martin a Peaceful and Non-violent Person?

January 13, 2013

I write today regarding a game within the game. I am specifically referring to trial by ambush despite discovery rules that require the prosecution to basically turn over everything it has to the defense long before trial.

My inspiration to write about this subject comes from a series of questions asked by Diaryofasuccessfulloser, who wanted to know where to find evidence that Trayvon was a peaceful and non-violent person in the discovery that has been released.

You can look but you will not find much.

The discovery rules require the prosecution to identify the witnesses it intends to call and to provide copies of their statements to the defense and to the public.

Those statements do not necessarily include all of the information obtained from those witnesses. Defense counsel have a duty to investigate their cases and that includes tasking an investigator to interview the witnesses or to be present and take notes when the lawyer interviews them. Florida permits the use of depositions under oath in criminal cases.

Interviews and depositions provide an opportunity to obtain information not included in the statements and reports.

The best source of information about Trayvon’s non-violent and peaceful nature is his family and friends like Dee Dee. She described him that way to Benjamin Crump and to Bernie de la Rionda. So did the librarian where he used to study after school. His parents have described him that way publicly.

Note that the defense, which has been trying its case in the court of public opinion, has not produced any evidence at all to support its claim that he was an aggressive martial arts enthusiast who picked fights and bullied others. Obviously his school records contained no information to support that claim or the defense would have shouted it from the tree house.

According to the complaint filed by the security/investigation firm, the investigators did not find out anything useful to the defense about Trayvon. We do not know what they were tasked to do, but given the importance of such evidence to support the defendant’s claim, I suspect they looked for such evidence, but did not find it.

The absence of evidence to support the defense claim might reasonably be considered evidence that he was not an aggressive martial arts enthusiast who picked fights and bullied others.

That absence of evidence is consistent with what we have heard from his family and Dee Dee.

There are other witnesses too. I vaguely recall his former football coach describing him that way, for example.

In other words, you have to read between the lines sometimes because the prosecution is not required to document all of its evidence.

Remember that most witness statements and reports will never be admitted into evidence because most of them are hearsay. The evidence in court will consist of the exhibits admitted into evidence and the testimony of the witnesses under oath

Witness statements and reports rarely contain the whole story. They are like movie trailers and serve as a starting point to find out what the witness knows. Only a fool would assume that they contain all of the relevant information that a witness knows.

The prosecution has no obligation to reduce all of that information to writing and share it with the defense. The prosecution is only obligated to disclose exculpatory evidence to the defense and this evidence is not exculpatory. Evidence that Trayvon was peaceful and non-violent hurts the defense. Therefore, the prosecution has no duty to reveal it to the defense, unless it is in a statement.

I suspect the prosecution has a lot of evidence that has not been recorded or written down anywhere in a report.

Part of the game is to conceal as well as reveal only that which you are required to reveal.

The only way the defense can discover the information not included in the reports is to use an investigator to find it or acquire it during a deposition.

Unfortunately, the defense does not appear to have any investigators or experts to assist the lawyers.

This is one reason why I have been so critical of the defense effort. With the exception of the one report we know about, which they did not pay for, the defense appears to have sacrificed the use of investigators in favor of maintaining and paying for the defendant’s comfort and unnecessary security. In a case where the forensics likely will determine the outcome, the defense also appears to have sacrificed the use of experts for the same two reasons.

With O’Mara potentially indebted to the security/investigation firm for $27,000 and not having been paid a cent for the work he has performed, I can only shake my head in amazement that the priorities in this case are so upside down.

This is what can happen when a lawyer lets a selfish and clueless client run the show.


Short and Sweet

January 12, 2013

Saturday, January 12, 2013

I wrote Short and Sweet to follow-up on my article yesterday titled, Keep It Simple, Stupid.

The defense in the Trayvon Martin murder case apparently does not have any credible evidence that he was a martial-arts trained aggressive bully who assaulted people. I say “apparently” because I am certain we would have heard about it, given the defense effort to try its case in the court of public where defense counsel can testify with impunity, rumor and innuendo are admissible, and the prosecution cannot cross examine or introduce any evidence. Since evidence that Trayvon was a martial-arts trained aggressive bully who assaulted people would not be difficult to find, if it existed, I believe we can reasonably conclude that such evidence does not exist.

The one thing we do know from reviewing the complaint filed by the security/investigation company against the defendant, his wife and the defendant’s attorney is that its investigators found nothing useful for the defense and could not even confirm a rumor that a client’s daughter could have purchased marijuana from Trayvon.

Instead, the prosecution apparently has a mountain of evidence that Trayvon was peaceful and non-violent.

This evidence is not admissible unless the defense opens the door by claiming that Trayvon was the aggressor and initiated the confrontation by sucker-punching the defendant in the nose, knocking him to the ground.

Difficult to imagine the defense will not make this claim during its opening statement, since this is an important and necessary part of the defendant’s self-defense claim that he provided to the police and to a national audience during the Hannity interview. Therefore, I think we can reasonably assume that the defense will open the door during its opening statement and the prosecution will be introducing evidence of Trayvon’s non-violent and peaceful disposition during its case-in-chief.

On the other side of the coin, the defendant has shown that he has a violent temper and a willingness to assault others when he loses his temper. That uncharged-misconduct evidence is not admissible under rule 404(b), unless the defense opens the door by claiming he is a non-violent and peaceful person or a person with good character.

The defense will make a bad mistake, if it opens this door, but I think they will do it.

Why?

Because the defendant still appears to be driving the bus and he is as clueless as clueless gets.

Katie bar the door, if they do.


Keep it Simple, Stupid

January 11, 2013

Keep it simple, stupid or KISS is a fundamental rule of trial practice. It is so important that I am seriously considering adding it as a new Fourteenth Commandment to the Thirteen Commandments that I wrote about on September 25, 2012.

I credit Sheila Dunn for inspiring me to write about this rule today. She shocked me yesterday when she criticized Piranha Mom’s recent article as pro-Zimmerman. She shocked me again when she said the blog was turning pro-Zimmerman. Quite a few of you were similarly shocked and most of the responses, including my own, fell into the are-you-nuts category.

I reconsidered and decided that probably she was warning us that we are violating the KISS rule by entertaining theories that unnecessarily complicate and weaken the prosecution’s case. I responded a second time stating that the prosecution is not likely to attempt to prove something that it cannot prove. That is, we are not the prosecution team and we are not subject to the KISS rule. Specifically, Piranha Mom was not asserting that her theory was true. She was discussing the theory and the evidence that supports it.

It may be true and it may not be true. We may find out that it’s true or we may not. Right or wrong the exercise is useful because it forces us to sharpen our critical thinking skills by examining the evidence again from another perspective.

When we engage in a theoretical exercise, we also have to consider the rules of evidence. We need to consider what evidence is admissible and what evidence is inadmissible. In this situation, we need to consider whether and to what extent is uncharged misconduct admissible in a criminal trial.

I wrote an article about this subject on December 18, 2011. The title is Criminal Law: Admissibility of Uncharged Misconduct Evidence. Here it is, including the hilarious clip from the film, My Cousin Vinnie.

Two what?

Author’s note: I refer to the Federal Rules of Evidence for the sake of convenience because most states have adopted them verbatim, or with only slight changes. They have even retained the same numbering system for ease of reference.

In criminal trials, prosecutors often seek to introduce evidence that a defendant has committed misconduct other than that charged in the information or indictment.

Why?

Answer: Since prosecutors are required to overcome the presumption of innocence by proof beyond a reasonable doubt, they fear they will not be able to convict a defendant without relying on uncharged misconduct evidence, especially in weak cases.

Rule 401 of the Federal Rules of Evidence (FRE 401) provides:

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

FRE 402 provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

No one disputes that, under some circumstances, such evidence is relevant, for example, to show a defendant’s state of mind where his state of mind is an issue in a case.

Let us say that a 31-year-old defendant is charged with statutory rape in a hypothetical jurisdiction where the crime prohibits a person over the age of 25 having sex with a person under the age of 16. He claims that he did not know and had no reason to know that she was underage because she told him she was 19 and she appeared to be that old. Thus, the issue is whether the defendant knew she was under the age of 16 .

Let us further say that the prosecutor can prove that the alleged victim met the defendant when she approached him in a parking lot outside a convenience store and asked him to buy her a pack of cigarettes because she was not old enough to buy them. He agreed, and after he gave her the cigarettes, they spent some time together that ended several hours later when her father discovered them in flagrante delicto while parked outside the family house. A person must be 16 in this jurisdiction to buy cigarettes legally and it is a misdemeanor to purchase cigarettes for a person under the age of 16.

Should the prosecutor be permitted to introduce evidence about the cigarette purchase?

Answer: Yes, the incident is relevant under FRE 402 because it establishes that he knew she was under the age of 16, and relevant evidence is admissible under FRE 401.

What about other instances of uncharged misconduct? Are there other rules that apply?

Answer: Yes, FRE 403 and 404.

FRE 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Would the cigarette purchase evidence be inadmissible under FRE 403?

Answer: No, because the probative value of the evidence to prove that he knew she was under the age of 16 is high and the danger of unfair prejudice is low. There is little danger that the evidence will confuse the issues, mislead the jury, or waste time.

Note that any analysis under FRE 403 requires a weighing of probative value versus prejudicial effect.

FRE 404 provides:

(a.) Character evidence generally.

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1.) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution.

(2.) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

(3.) Character of witness – Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b.) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

(emphasis supplied)

FRE 404(a) states the general rule, which prohibits the use of character evidence (e.g., the defendant is a liar) to prove that the defendant lied on a particular occasion relevant to the case. I believe this rule makes sense because no one lies all the time with the possible exception of the obamanable one, of course. Such evidence would invite the jury to basically presume the defendant lied at the time in question, rather than basing its decision on the evidence, and that would violate the presumption of innocence.

FRE 404(b) begins with a general prohibition against the use of uncharged misconduct. The second sentence sets forth the exceptions.

Uncharged misconduct is admissible to prove:

1. motive,

2. opportunity,

3. intent,

4. preparation,

5. plan

6. knowledge,

7. identity, or

8. absence of mistake or accident.

In our hypothetical, the defendant’s uncharged misconduct (i.e., purchasing cigarettes for the underage girl) would be admissible to show knowledge (i.e., that he knew she was less than 16-years-old) and absence of mistake (i.e., that he did not mistake her to be 16-years-old, or older).

As before, the judge would have to balance the probative value of the evidence against its potential prejudicial effect pursuant to FRE 403, but we all know how that will turn out.

Whether any one or more of these factors will be present in any given case depends on what the prosecution must prove to convict a defendant and whether the prosecutor knows about and can prove prior uncharged misconduct.

Note: FRE 404 applies when a prosecutor seeks to introduce uncharged misconduct evidence during its case-in-chief (i.e., when the prosecution is presenting its case). FRE 609, which governs the admissibility of a defendant’s prior conviction, applies during the defense case after the prosecution rests, if the defendant testifies (i.e., if the defendant testifies, the prosecution gets to introduce the prior conviction to impeach or undermine the defendant’s credibility. The prosecution cannot introduce the prior conviction, if the defendant does not testify). Prior felony convictions are admissible, if less than 10-years-old, subject to the judge weighing the probative value versus the potential prejudice to the defendant, unless the crime involves dishonesty or false statement. Even misdemeanors that involve dishonesty or false statement are admissible under this rule.

Some examples:

1. Prior drug use should be excluded in a drug case since it merely shows propensity to use drugs, which has low probative value and high prejudicial value and it does not fall into any of the 8 exceptions listed in FRE 404(b).

2. A prior felony drug conviction should not be admissible as impeachment, if the defendant testifies, because its potential prejudicial value outweigh its probative value, However, some jurisdictions permit it on the ground that a drug conviction involves dishonesty or false statement.

3. So-called signature crimes are admissible under FRE 404(b) to prove identity of the perpetrator.

Conclusion: The admissibility of uncharged misconduct evidence is one of the most complicated and litigious issues in criminal law. This essay is a brief overview of the subject to explain what it is about in laymen’s terms. Should you or someone you know be involved in a case in which this issue comes up, educate yourself with this article and use it to intelligently discuss the issue with your lawyer. As always, rely on your lawyer. If you do not trust your lawyer, hire another one.


The Two Photographs of the Defendant’s Head Damage the Defense

December 17, 2012

Monday, December 17, 2012

After reviewing and considering the remarks by Zhickel, Grbsb, Jun and Whonoze (AKA: Treeslaw), I am going to put on my judge’s robe and issue the following ruling:

I find that neither photograph was altered and, therefore, both photographs are authentic and admissible at trial.

This is not a bad result for the State, as you will soon see.

In effect and by design, because I set it up this way, we have had our own internet version of a battle-of-experts pretrial hearing regarding the admissibility of the two digital photographs taken at the scene of the homicide by Officer Wagner (face) and the neighbor named Jon (back of the head).

The legal issue was whether the photos were authentic (i.e., originals or authentic reproductions) or fraudulent reproductions (i.e., altered).

Zhickle (nice to see your fonts again) and Grbsb in effect testified as experts for the defense while Jun and Whonoze testified as experts for the State.

There has to be a winner and on balance I decided for the defense because giving them what they want on this issue does not hurt the State’s case and I did not want to give them an appellate issue that might result in reversing the defendant’s conviction.

In other words, I am thinking strategically, or big picture, rather than focusing on the relative merits of each argument.

I predict Judge Nelson will reach the same conclusion for the same reason.

Just as I would do, I predict she will permit the prosecution to use their experts to acknowledge the distortions in the photos and explain why they are present, just as our four experts did. Such factors will go to the weight, or value of the evidence, rather than its admissibility.

The jury will decide how much weight to give to those photos. The greater the distortion, the less weight they are likely to be given.

The photos taken at the station house also will be admitted. Those photos together with expert testimony from one or more trauma surgeons should establish to a reasonable medical certainty that the defendant’s injuries, including his claimed but unverified “broken nose” were minor and inconsistent with the defendant’s narrative claiming how he got them.

The absence of any detectable trace of blood on the cuffs and lower sleeves of Trayvon Martin’s two sweatshirts and the absence of the defendant’s DNA in Trayvon Martin’s fingernail clippings also do not support the defendant’s narrative, as one would expect detectable amounts of the defendant’s blood and DNA in both areas. That is, despite the rain, detectable amounts of blood and DNA would have been present, if the defendant’s narrative were true.

In addition, the pattern of blood flow as depicted in the photo taken at the scene, before an EMT cleaned his head, shows blood flowing in a downward direction toward and curling around the lower end of his ears, which does not support the defendant’s claim that he was lying on his back. Instead, it shows that his head was upright and leaning forward, which is consistent with the defendant straddling Trayvon Martin, as several witnesses described him doing (Selma and the teacher).

These photos do not help the defense case. Considered together with the physical evidence, they appear to not only rule out the possibility that the defendant was reasonably in fear of imminent death or serious bodily injury, they also appear to rule out Trayvon Martin as the person who caused those wounds.

Given some minor scratches to his face, it appears more likely that the defendant ran into a tree branch in the dark bumping his nose and fell down bumping his head on some object, possibly a sprinkler head or cover, or possibly the edge of the cement sidewalk or a sign. Whatever caused them, it was not likely to have been Trayvon because there is no evidence that Trayvon Martin hit the defendant.

Even if he did hit him, I think the jury will find that he was legally justified to do so in self-defense because the defendant followed him first in his vehicle and then on foot into a dark area where he confronted and attempted to detain him without ever identifying himself, contrary to the police dispatcher’s admonition and the Neighborhood Watch rules.

I hope this exercise was helpful to a better understanding of hearings on motions in limine, battles between experts and the strategic considerations that inform judicial thinking.

Thanks to all of you for participating and please give me some feedback regarding whether this worked for you as a learning experience.


Admissibility of Photographs Exhibiting Defendant’s Claimed Injuries in Trayvon Martin Murder

December 16, 2012

Sunday, December 16, 2012

We have reason to believe that the digital color photo of the defendant’s face, publicized by the defense last week and exhibited below, was altered to create the appearance of an injury to his nose. We also know from the discovery provided by the State of Florida that SPD Officer Wagner, the man who took the photograph of the defendant sitting sideways in the back seat of an SPD cruiser with the back door open and his feet on the ground, deleted his original photograph from his iPhone after he downloaded a copy to his laptop. He claims to have forgotten that he had the photograph for about three weeks before he finally remembered it and gave the copy to SPD Investigator Serino. We saw this photo in the first evidence dump last May when the State released a black and white version produced by a copy machine.

Bloody nose Photo

We also have reason to believe that the digital color photo exhibited below of the back of the defendant’s head taken by a neighbor moments before the first officer arrived at the scene of the shooting also has been altered to add fake blood trails to increase the significance of two minor capillary-type injuries to the back of his head.

Back of the Head

The defense claims that these photographs prove that Trayvon Martin attacked the defendant at the T intersection without provocation as he was walking back to his truck, broke his nose stunning and knocking him to the ground, straddled him and rained down vicious punch after vicious punch to his face MMA-style, and then grabbed the sides of his head and savagely bashed the back of it against a concrete sidewalk until he thought his head would explode. Claiming that the defendant was at death’s door, the defense argues that he was reasonably in imminent fear of death or serious bodily injury when he killed Trayvon Martin.

I do not agree.

Compare these photographs to the high definition close-up photographs taken at the police station a few hours after the shooting and draw your own conclusions.

Defendant’s Face and Back of Head

Despite legitimate doubts regarding their provenance defense attorney, Mark O’Mara, flashed the two photographs in front of television cameras as he casually strolled to the podium to address the court at a motions hearing on Tuesday, December 11, 2012. Since he claims they establish the defendant’s innocence, I believe we can reasonably conclude that the defense will attempt to introduce those two photographs at the trial.

QUESTION: Are these photographs admissible at trial?

ANSWER: No, not if they have been altered.

ANALYSIS:

The defense wants the photographs admitted to support the defendant’s claim that he killed Trayvon Martin in self-defense. Specifically, that they accurately depict physical injuries inflicted by Trayvon Martin that caused the defendant to reasonably fear imminent death or serious bodily injury, such that he was legally justified in using deadly force against Martin to defend himself.

Assuming each photograph accurately depicts the defendant’s physical injuries when the photographs were taken, I believe Judge Nelson will admit them as relevant and probative evidence of the nature and extent of his physical injuries and whether he reasonably feared imminent death or serious bodily injury when he used deadly force.

Note the big assumption at the beginning of that sentence, however, and therein lies the rub.

Let us begin our analysis by taking a look at the best evidence rule. The purpose of this rule is to assure that only authentic documents and photographs are admitted into evidence.

This rule provides that an original photograph is generally required when proving the contents of a photograph, unless it is unavailable through no fault of the party offering a copy of the original. If that condition is satisfied, a copy of the original may be admitted in its place if the copy is an authentic and accurate reproduction of the original. See Evidence Rule 1003.

The original photograph of the defendant’s face is not available because Officer Wagner deleted it from his iPhone. Since he was not part of the defense team, the copy is admissible, provided it is an authentic and accurate reproduction. I imagine that the prosecution will argue that it is not because it can prove that the photograph was altered from its original state.

Look for the State to move in limine to exclude the photograph from evidence on the ground that it is not an accurate and authentic copy of the lost original and that, in any event, it has been altered and would mislead the jury, if admitted.

The original photograph of the back of the defendant’s head may be available, but like the photograph of his face, it appears to have been altered. Therefore, I expect the State will also move in limine to exclude this photograph from evidence.

The outcome of the motions will depend on whether the State’s experts can persuade Judge Nelson that the photographs have been altered and do not accurately depict the defendant’s appearance when they were taken.

If she grants the prosecution motion regarding both photographs, which is what I expect her to do, then the defense will be prohibited from mentioning the photos and the jury will never see them.


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.

-Snip-

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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