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.