Defense renews request to depose attorney Benjamin Crump

March 18, 2013

Monday, March 18, 2013

Greetings to everyone.

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

Needless to say, I have been exploring other options.

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

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

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

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

Now, back to business.

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

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

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

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

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

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

I do not believe he can get there from here.

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Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

March 8, 2013

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

In Dennis v. State, 51 So.3d 456, 462 (2010), the Florida Supreme Court stated,

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

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

March 7, 2013

Thursday, March 7, 2013

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

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

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

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

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

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

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

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

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

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

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

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

(1) about her age; and

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

The prosecution’s case is not crumbling.

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

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

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

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

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

(Emphasis supplied)

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

(Emphasis supplied)

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

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

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

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

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

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Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea

March 6, 2013

Wednesday, March 6, 2013

Several of you, including Xena, Southern Girl and Towerflower, have asked me to comment on the possibility of combining an immunity hearing with the trial. I do not believe that is a workable solution because it would violate the defendant’s right to remain silent and the presumption of innocence.

Let us use the defendant’s case as an example.

In a typical immunity hearing, a defendant has the burden of proving by a preponderance of the evidence (more likely so than not so) that he acted in self-defense. He puts on his case first, since he has the burden of proof, and the prosecution goes second. If the judge concludes that he satisfied his burden, she will enter an order granting him immunity from civil suit and dismiss the criminal case.

A defendant is not required to testify at the immunity hearing, but if he testifies, and most will since they have the burden of proof, he does not waive his right to remain silent at a subsequent trial, if the judge denies his motion for immunity.

If the hearings are combined in GZ’s case, the prosecution will go first because it has the burden of proving beyond a reasonable doubt that he did not kill Trayvon Martin in self-defense.

Let us suppose for the sake of argument that the defense manages to poke some holes in the prosecution’s case such that the defendant and his lawyers are pretty confident about winning the trial without putting on a defense. They do not believe the defendant needs to testify and he does not want to testify.

The defense moves for a judgment of acquittal and for an order granting immunity.

For the purpose of the criminal case and ruling on the motion for a judgment of acquittal, the judge would be required to decide whether a rational trier of fact could find beyond a reasonable doubt that the defendant was guilty based on the evidence introduced during the prosecution’s case. Let us further suppose that the judge decides that a rational trier of fact could convict the defendant and denies the motion for a judgment of acquittal.

For the purpose of ruling on the immunity issue, the judge would be required to decide whether the defense had met its burden to prove by a preponderance of the evidence that he had acted in self-defense. There is little likelihood that the judge would grant the motion because the defense has not put on its case and the defendant has not testified. Therefore, the judge would deny the motion.

Now what happens?

If this were “just” a trial, the defense would rest without introducing any evidence or putting the defendant on the stand to testify. I won about 80% of my trials by employing this strategy, including some self-defense cases by relying on the presumption of innocence and arguing reasonable doubt.

The defense cannot use that strategy, however, if it wants a shot at immunity. Since it has the burden of proof, it must put on a case and the defendant has to testify.

Do you all see the problem now?

The defendant has to give up his right to remain silent to have a shot at immunity, but if he testifies, he risks not only losing the motion for immunity, he also risks being convicted by the jury, if the jury does not believe him.

In other words, in order to exercise his statutory right to an immunity hearing, he is forced to give up his right to remain silent and be presumed innocent in the criminal case.

Notice that combining an immunity hearing with the trial only hurts a defendant.

There is a very long line of SCOTUS cases that prohibit forcing a defendant to give up one constitutional right to exercise another.

That is the problem with combining a pretrial immunity hearing with a trial.

It is also the reason why pretrial suppression hearings in criminal cases are not combined with trials.

I realize that this procedure has been followed in other cases in Florida, and Judge Nelson could decide to follow it in GZ’s case, but I think she would be unwise to do so.

For example, if the defendant were to testify, the jury found him guilty, and Judge Nelson denied his motion for immunity, you can bet that he will claim that he was forced to waive the presumption of innocence and his right to remain silent in order to exercise his statutory right to an immunity hearing and that his lawyer provided ineffective assistance of counsel in violation of his Sixth Amendment right to counsel by waiving his right to a pretrial immunity hearing.

I believe that the case will be reversed and remanded for a new trial, if the scenario that I have described takes place.

The scenario is not far fetched.

Frankly, I am shocked that defense counsel would even consider combining the immunity hearing with the trial. Either they are incompetent or simply using this idea as a smokescreen to conceal that they know they have no case.

They may be unwilling to admit publicly that they do not really intend to pursue the request for an immunity hearing during the trial for the simple reason that they fear financial contributions to the defense would wither away to nothing.

I regard that as theft by misrepresentation.

GZ’s supporters should be screaming bloody murder about this latest turn of events.

Instead, his supporters, including some criminal defense lawyers who should know better, are calling yesterday’s decision a victory for the defense.

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No immunity hearing in Zimmerman case

March 5, 2013

Tuesday, March 5, 2013

At today’s hearing, Judge Nelson asked Mark O’Mara if he still needed the two weeks she had set aside in April for the defendant’s immunity hearing.

He responded, “No.”

Does this mean that the defendant will be waiving his right to an immunity hearing?

I believe the answer is, “Yes.”

Although O’Mara has previously suggested that the immunity hearing and the trial be combined, I do not believe that makes any sense for the following reasons.

The purpose of the immunity hearing is to determine whether there is any need for a trial. If the judge grants the defendant’s motion for immunity, there is no trial and no jurors need be summoned to come to court. No time has to be reserved for the trial.

There is no reason to have an immunity hearing, unless it takes place before the trial.

The defense goes first in the immunity hearing and has the burden of proving by a preponderance of the evidence that the defendant acted in self-defense, As a practical matter, this means the defendant must testify.

The defense has no burden of proof in the trial. The defendant and the prosecution must go first and the defendant is presumed innocent.

Combining the two hearings would, in effect, deny the presumption of innocence to the defendant and that would be a major constitutional error requiring reversal.

Judge Nelson and BDLR certainly know that.

The judge is not going to go through 2-3 weeks of jury selection if that is not necessary.

Therefore, MOM has in effect waived the immunity hearing.

BOTTOM LINE: The defense cannot risk putting the defendant on the stand at an immunity hearing because of the tsunami of extremely negative publicity that would result from the evisceration of the defendant on cross by the prosecution.

O’Mara does not want to admit that his client is not credible and I can understand why because the physical and forensic evidence refutes everything he says and he has given so many contradictory and inconsistent statements about what happened that with only eight exceptions, no one will believe anything he says.

The eight exceptions are:

1. I got in my truck.

2. I followed him in my truck.

3. He ran.

4. I got out of my truck.

5. Fucking coons (or if you prefer, fucking punks).

6. These assholes, they always get away.

7. Tell the officer (that was dispatched to the neighborhood) to call me on my cell phone when he gets here so that I can tell him where to find me.

8. I shot him (Trayvon Martin).

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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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Why would an Afro-Peruvian defendant want an all white jury

March 2, 2013

Saturday, March 2, 2013

Good morning.

I write today to warn everyone regarding a probable defense effort during jury selection to exclude all potential jurors who are black, notwithstanding the recent defense claim that the defendant is Afro-Peruvian, whatever the hell that means.

The simple truth is that this defendant self-identified as white until after he killed Trayvon Martin. When he was accused of racially profiling Trayvon, he rather conveniently decided that calling himself White Hispanic and more recently Afro Peruvian would dispel any suspicions that the killing was racially motivated.

Instead, given the convenient timing of his declarations and his confusion of race with nationality unintentionally showcases his intellectual limitations and the desperate lengths to which he will go to deny that he is a racist.

He doth protest too much, methinks.

Therefore, do not be surprised if the defense attempts to use its peremptory challenges to exclude black jurors from the jury.

Recall, that unlike a challenge for cause, a lawyer does not have to explain the basis for a peremptory challenge. Recall too, that the SCOTUS prohibited the use of peremptory challenges by prosecutors to systematically exclude blacks from serving on juries with black defendants in Batson v. Kentucky, 476 U.S. 79 (1986), because such systematic exclusion violates a defendant’s Fourteenth Amendment right to Equal Protection of the laws. See also Miller-El v. Dretke, 545 U.S. 231 (2005).

We have an interesting wrinkle in this case because, if it happens, the defendant will be the party systematically excluding jurors because they are black or non-white, whereas, in Batson and Miller-El the prosecution systematically excluded blacks violating the defendant’s right to equal protection of the laws.

The issue the prosecution must be ready to argue and Judge Nelson must be ready to decide before jury selection is whether the Batson and Miller-El prohibition against the prosecution’s discriminatory use of peremptory challenges applies equally to a defendant.

I believe the answer is “yes,” because to rule otherwise would constitute official judicial approval of discrimination against black jurors in jury selection, so long as the defendant is doing the discriminating. I do not see that happening, if for no other reason than blacks have just as much right to serve on juries as whites.

Consider this language from Justice Blackmun’s majority opinion in JEB v. Alabama ex rel. TB, 511 U.S. 127, 128-129 (1994), in which the Court extended the Batson rule to gender.

In Batson v. Kentucky, 476 U. S. 79 (1986), this Court held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. The Court explained that although a defendant has “no right to a `petit jury composed in whole or in part of persons of his own race,’ ” id. , at 85, quoting Strauder v. West Virginia, 100 U. S. 303, 305 (1880), the “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria,” 476 U. S., at 85-86. Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U. S. 400 (1991); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. McCollum, 505 U. S. 42 (1992).

Although premised on equal protection principles that apply equally to gender discrimination, all our recent cases 129*129 defining the scope of Batson involved alleged racial discrimination in the exercise of peremptory challenges. Today we are faced with the question whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race. We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.

(Emphasis added)

White defendants certainly do not have a right to an all white jury. As Justice Blackmun said, they have a right to a jury selected in a non-discriminatory manner.

Therefore, the selection process must be non-discriminatory and that must necessarily apply to all parties and to the Court.

A final thought to consider:

If the defendant is the race-blind Afro-Peruvian that he claims to be, then he ought to submit his case to an all black jury.

What do you think the odds are that he would agree?

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