Afro-Peruvian emperor wears no clothes

April 24, 2013

Wednesday, April 24, 2013

BDLR has filed a motion asking Judge Nelson to order the defendant to appear at the April 30th hearing and state on the record that he is waiving his right to the immunity hearing.

H/T to Southern Girl 2 for providing the link to BDLR’s motion

He also asks Judge Nelson to issue an order that she will not permit the immunity hearing to take place during the trial or after it.

I support this motion. In fact I published three posts in early March warning that this needed to be done to avoid significant legal problems that might otherwise come up forcing a retrial of the case, if the jury convicted the defendant.

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

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

3. Post trial immunity hearings are a terrible idea

This motion is an example of a prosecutor taking action to protect the record from a collateral attack by a new lawyer representing the defendant after he is convicted and sentenced to prison and arguing that the defendant is entitled to a new trial and a statutory immunity hearing because he never waived his right to that hearing and did not know or consent to Mark O’Mara waiving it for him.

BDLR also wants Judge Nelson to clarify the record regarding the possible merger of the statutory immunity hearing with the trial, which O’Mara had suggested as an alternative to holding the hearing during the last two weeks of April, so that the record shows that she considered and denied O’Mara’s request more than a month before trial. Such an order would foreclose an argument by O’Mara that he never waived the statutory immunity hearing and reasonably believed and relied to the defendant’s detriment on the two matters being combined.

Best to clarify that current ambiguity in the record so that it does not result in reversal and remand for an immunity hearing and a new trial, if the defendant loses the immunity hearing.

Therefore, I believe BDLR’s motion is timely and necessary to protect the record.

Although I believe O’Mara decided long ago that he had no chance to win the immunity hearing because the defendant could not withstand cross examination due to his many conflicting and inconsistent statements. I think he decided that he did not want to formally admit in open court on the record that he was waiving his client’s right to the statutory immunity hearing because he was concerned about the effect that his waiver would have on his efforts to substantially increase donations to his “innocent” client’s internet defense fund and win the trial in the court of public opinion. To use a poker analogy, folding your hand at the last minute by waiving the hearing establishes that you were bluffing when you kept insisting that you had a winning hand.

Not exactly the ideal position for the defense to be in on the eve of trial.

BDLR is going for the jugular with this motion to clarify for all the world to see that the Afro-Peruvian emperor wears no clothes.

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Dispute regarding publication of settlement amount is a tempest in a teapot

April 19, 2013

Friday, April 18, 2013

Good morning.

The dispute regarding whether the settlement amount should be publicized is a tempest in a teapot.

A defendant in a criminal case has the right to cross examine a witness against him regarding any bias or prejudice the witness might have that might influence their testimony in the case.

To facilitate discussion, let us assume that the case settled for $1.75 million.

Mark O’Mara wants to know that amount so that he can argue to the jury that Tracy Martin and Sybrina Fulton were not credible witnesses when they identified Trayvon as the person who uttered the death shriek.

For example, he could argue that they had 1.75 million reasons to lie.

As distasteful as such an argument would be, I believe the defense has a right to make it.

Whether it would make any sense to cross examine them about the settlement and to argue that they lied when they identified Trayvon as the source of the death shriek is another matter.

I do not believe there will be any doubt that Trayvon uttered that shriek because he was unarmed and the shriek abruptly ended as though silenced by the gunshot.

There is no credible argument that the defendant uttered that shriek as he pulled his gun out of the holster, extended his arm, aimed while making certain that he would not shoot his left hand by mistake, and pulled the trigger simultaneously stopping his scream.

To argue to the jury that Trayvon’s parents lied for financial reasons would be to invite scorn, if not hatred, and prejudice the defendant.

Nevertheless, if O’Mara wants to be stupid and venture into an area where no one with an ounce of sense would dare to go, the law erects no barrier and permits him to make a fool out of himself.

I doubt he is that stupid. I suspect he is merely posturing and would not dare go down that road.

Judge Nelson could dispose of this motion by ordering that the amount of the settlement remain confidential for now, subject to reconsideration if Trayvon’s parents testify.

Let him dare to bring it up.

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How and when to present an ineffective assistance of counsel claim

April 17, 2013

Wednesday, April 17, 2013

Good afternoon to all.

Searching Mind has asked a series of good questions in comments to my article yesterday regarding whether a defendant can raise an ineffective-assistance-of-counsel claim (IAC) on direct appeal. Xena also asked me to discuss the experts I would contact about the case. I will not identify anyone by name, but I will mention the subject matter that I would want to discuss with an expert suitably qualified in that area.

First, let’s take a look at whether an IAC claim can be raised on direct appeal.

I agree with Searching Mind that IAC claims can be raised on direct appeal, if the record unequivocally supports the claim such that there are no disputed material facts and therefore no need to remand the case to the trial court with instructions to conduct an evidentiary hearing to resolve disputed facts. This is equivalent to saying that the DCA can decide the issue as a matter of law on a set of undisputed facts.

This situation does not happen very often. For example, one of the elements of an IAC claim requires a defendant to plead and prove the standard of practice at the time the alleged error was committed by defense counsel. The defendant also must plead and prove that defense counsel violated that standard, that the violation was material and not merely a tactical decision. In most cases, the parties dispute one or more of those issues and the DCA cannot determine whether the defendant has a valid IAC claim by reviewing the transcript on appeal. The answer isn’t there.

Therefore, the rule is the DCA will not review an IAC claim on direct appeal when material facts are disputed, the answer is not in the record, and the disputed facts cannot be resolved without an evidentiary hearing.

Every rule has an exception and the exception to this rule is that the DCA will consider an IAC claim on direct appeal when there is no genuine dispute of material facts and the DCA can resolve the claim as a matter of law.

Now let’s take a look at the defendant’s case and assume that O’Mara does not file a motion asking Judge Nelson to find the defendant indigent and authorize the appointment and compensation at public expense of an investigator and such experts as may be reasonably necessary to assist defense counsel in presenting a defense.

Let’s further suppose that O’Mara does not call any expert witnesses and the jury convicts the defendant.

Can the DCA decide an IAC claim on direct appeal?

Answer: Probably not, because an evidentiary hearing would have to be conducted to determine if the outcome of the trial probably would have been different, if the defense had presented the testimony of certain expert witnesses, who I am assuming would exist for the purpose of this demonstration. The identities of those witnesses and their testimony would not become known unless habeas counsel did what O’Mara did not do.

Under this set of circumstances, the IAC claim would have to be raised in a state habeas petition after the conviction was affirmed on direct appeal. The habeas petition would be granted, if we assume for the sake of argument that the standard of practice would have been to obtain an order of indigency appointing experts at public expense, that expert testimony would have materially supported the defendant’s claim of self-defense and the defendant probably would have been acquitted if the experts had testified.

At this point there are too many unknowns to predict an outcome, except to say that a murder conviction appears likely, given the evidence that has been released to the public.

Now, let’s tackle Xena’s question about which experts I would consult, if I were representing the defendant.

I would consult with a pathologist to review the autopsy report and the AME’s findings regarding the entry wound, trajectory of the bullet, and the distance between the muzzle of the gun and the entry wound when the shot was fired. I also would discuss what the evidence shows relative to the positions of the victim and the shooter when the shooter fired the fatal shot. I also would want to know if the pathologist disagrees with anything in the autopsy report and whether the defendant’s statement to police describing the shooting is consistent or consistent with the autopsy report. Finally, I would ask about the length of time the victim would have remained conscious after the shot, whether he could have said anything, and positional asphyxiation as a contributing factor to cause of death.

I would want to consult with a firearms expert to discuss the weapon used, the fatal shot, and whether the defendant’s statement about how he fired the fatal shot is consistent with the evidence. I also would want to review the crime lab analyst’s report and bench notes regarding the bullet holes in the sweatshirts and whether they align with the entry wound.

I would follow Lonnie’s advice and look for a kinesiologist or someone in a related field to discuss the relative positions of shooter and victim when the fatal shot was fired.

Next up, I would want to discuss the defendant’s injuries with a trauma surgeon, blood spatter expert, and DNA expert.

Consulting with an expert on GPS tracking would be high on my list as would consulting with an audiologist about identifying the person who uttered the shriek.

I probably also would have the defendant undergo thorough psychological testing because I suspect he may suffer from some kind of organic brain disorder that may affect perception and functioning.

I probably would consult with other experts, but that is all that comes to mind right now. This post has reached 1,000 words, so I am going to wrap it up and reserve further discussion for the comments.

The steps I have described here regarding consultations with experts in a case like this are what I would consider to be the standard of the profession. A failure to pursue and document this line of inquiry would fall below the standard and constitute ineffective assistance of counsel. To establish a valid IAC claim, however, the defendant would still have to establish that the result of the trial would probably have been different if counsel had done these things, discovered material evidence in his favor, and presented it at trial.

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O’Mara out of time in Zimmerman case

April 16, 2013

Tuesday, April 16, 2013

Abbyj said,

Omar will ride the PayPal buckaroo to the bitter end in an effort to squeeze out every last cent. He is hoping for a massive windfall, as fogen received early on. Without any hope of a great fortune appearing, O’Mara will then stand before Judge Nelson, wring his hands, and whine, “I haven’t had the financial resources to hire experts . . . ” Could fogen use this as grounds for an appeal?

Good question.

We begin at the beginning. Appellate courts hate piecemeal appeals. With one notable exception, they will refuse to review a case unless the circuit court has entered a final judgment terminating it. The exception is the writ procedure that permits a party to seek extraordinary relief from a specific order issued by a judge in the circuit court that, in effect, functions as a final order in a case depriving the losing party of an opportunity to present its case and argument in the circuit court.

The defense used the writ procedure to recuse Judge Lester (mandamus) and is now using it (certiorari) in an attempt to get an order vacating (setting aside) Judge Nelson’s order denying the defense motion to depose Benjamin Crump. I do not believe this effort will be successful because I think Judge Nelson made the correct legal decision. Since other witnesses were present when Crump interviewed Dee Dee to determine the cause of Trayvon’s death on behalf of his clients, Tracy Martin and Sybrina Fulton, his efforts constitute protected attorney work product that is not subject to disclosure. Moreover, the defense team cannot show they were prejudiced by Judge Nelson’s order because they can interview Dee Dee and the witnesses who were present. Therefore, Judge Nelson’s decision is not a final judgment or order that functioned like a final judgment by depriving the defense of its only opportunity to discover potentially favorable information for the defense.

With regard to your specific question, the defense would have to file a motion requesting some form of financial assistance from the court to pay for something that the defense has a right to do, but cannot afford to do. The defendant has a Sixth Amendment right to effective assistance of counsel at public expense, if he cannot afford counsel. The right to effective assistance of counsel at public expense, includes paying reasonably necessary expenses for investigators and expert witnesses.

Mark O’Mara and Don West have agreed to work pro bono, so they will not be asking the court to compensate them for the time they spend working on the case. However, their agreement to work pro bono does not mean that they also have agreed to pay the costs that will be incurred to defend their client. Specifically, the court cannot require them to pay experts and investigators.

The internet donations were supposed to cover those costs. According to O’Mara, however, the defense is underwater by approximately $10,000. I doubt that includes the $28,000 claim for services rendered by the security company, unless O’Mara has paid down the balance. Therefore, the defense may be in more serious financial trouble.

Judge Nelson cannot do anything unless O’Mara files a motion. An appropriate motion would be to ask her to enter an order declaring the defendant indigent and entitled to the reasonably necessary assistance of investigators and experts at public expense. Such a motion would have to be supported by a detailed financial statement or tax return submitted under oath. Given the substantial sum of money donated to the defendant via the internet (possibly approaching $500,000) that somehow disappeared and the defendant’s “potted plant” behavior at his bail hearing last summer when his wife under oath denied knowing that he had any assets just a few days after she transferred over $100,000 from the internet account into her personal account via his personal account pursuant to his specific instructions, I think Judge Nelson would refuse to accept anything at face value. I think she would insist the prosecution review the documentation or she might appoint a special master to review it, if the defense were to object. I think the defendant and his lawyers could safely assume that any irregularities would result in additional criminal charges.

If Judge Nelson were to deny the motion to declare the defendant indigent, her denial could be challenged on appeal. The issue would be whether she abused her discretion in denying the motion. In turn that would depend on the sufficiency of the documentation supplied by the defense.

To properly preserve this issue for appeal, the defense would have to ask Judge Nelson to reconsider her denial of his motion to appoint an investigator or an expert at every available opportunity. A failure to provide a road map in the trial transcript of requests to reconsider supported by specific reasons why an investigator or expert was reasonably necessary at that particular time might be fatal. For example, the DCA might agree that Judge Nelson abused her discretion by denying the request for indigency, but find that the error was harmless absent sufficient documentation of the harm to the defense caused by the denial.

If Judge Nelson were to grant the motion, O’Mara would have to submit ex parte motions to appoint specifically named individuals to do specific things. She would probably appoint one investigator. The number of experts she would be willing to appoint would depend on the relevance of their area of expertise to the subject matter at issue in the case. The rate of compensation would be at the reduced rate that the court has established for appointed cases.

If the jury were to convict the defendant and O’Mara failed to hire an investigator or an expert to assist in preparing for trial and putting on a defense, his failure to do those things could be raised in a state habeas petition after the appeal is unsuccessful. Habeas petitions are based on evidence that is not in the record and typically are based on defense counsel’s failure to do something that he should have done. The failure asserted in this instance would be the failure to hire an investigator or expert. If that happened due to lack of money and O’Mara did not ask Judge Nelson to find the defendant indigent, the claim would be that he provided ineffective assistance of counsel by failing to make the request.

In order to prevail, habeas counsel would have to convince the court that O’Mara’s conduct was deficient according to prevailing standards of conduct and that, but for the deficiency, the result of the trial probably would have been different.

It takes time to assemble a team of experts and investigators and it takes additional time for them to complete their assignments. O’Mara should have assembled his team before Thanksgiving. The trial is scheduled to begin in less than 60 days and the defense fund is underwater $10,000.

Even if Judge Nelson were to enter orders tomorrow finding the defendant indigent and appointing an investigator and experts, all financial compensation would be limited to services provided in the future.

Given that dire financial situation, plus one unhappy creditor having already sued O’Mara alleging that he has refused to pay $28,000 for services provided, I doubt anyone will invest any time or effort to help O’Mara without a substantial retainer up front.

Such is the nature of the criminal defense business.

Just like his client, he is out of time.

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Gloom in Mudville: The defense is upside down by $10,000

April 15, 2013

Monday, April 15, 2013

Greetings to everyone.

The defense is falling apart.

In the latest issue of Zimsanity News, which is my handy new way of referring to propaganda information about the legal case released by Mark O’Mara or information about the defendant’s clueless family released by its official spokesperson, Robert Zimmerman, Jr., we find out that Mark O’Mara wants the settlement agreement opened up for public review, including the settlement amount.

Ben Crump is OK with publicizing the agreement, but he wants the settlement amount to remain confidential.

Meanwhile, O’Mara announced on Friday that the defense fund is upside down by about $10,000. That’s bad news for the defense team with only 56 days left until trial.

Could this mean that the defense might be on the verge of tossing a white handkerchief into the ring, if the Court of Appeals denies the writ?

Possibly, because insufficient funds to try the case the way it should be tried is often cited by private counsel as the reason for a last minute guilty plea.

Do I have any evidence that such discussions have taken place?

No, I do not.

I discussed the lack-of-money problem a couple of months ago and suggested that the defense should consider filing a motion asking Judge Nelson to declare the defendant indigent. That would assure that all reasonably necessary defense expenses for deposition transcripts, investigators and expert witnesses would be paid by the court. No fuss, no muss regarding unpaid bills. That would certainly lighten the stress load.

Not so fast, you say?

Well, you’re right. O’Mara’s plea for more money from donors brought in approximately $60,000, but I gather that donations have slowed to a trickle.

Will another plea for money prime the pump, so to speak, and avert the looming financial crisis?

Maybe.

Maybe not.

If O’Mara cannot pull another financial rabbit out of his hat, he will have to ask Judge Nelson to declare the defendant indigent. However, given how quickly the defense blew through the $60,000 I cannot help but wonder if the defense has mismanaged the donations by spending far too much money for the defendant’s living and security expenses. I have not kept a tally but IIRC, they’ve blown through close to a half million by now and more than half of that money was spent on living and security expenses.

I think Judge Nelson would be required, as a matter of law to declare the defendant indigent, if he can satisfy her that he truly is indigent, even if he is responsible for having attained pauper status by spending too much money on non-essential items.

Bottom Line: O’Mara needs to take action to solve this problem ASAP because the longer he waits for the money to start flowing again, the more incompetent and irresponsible he will appear to be. That is exactly the wrong message to be broadcasting this close to trial, especially after he basically waived the “sure thing” immunity hearing and we now know that the HOA was not buying the narrative he was pushing on the public.

After all, why would potential donors remain willing to contribute money, if the defense failed to manage previous donations responsibly and O’Mara blew his credibility with donors when he waived the immunity hearing that was supposed to be such a sure-thing?

Those two circumstances might very well turn out to be death blows to the defense.

And then there is the message from Gladys blaming the public for the decision to charge the defendant with second degree murder.

I am going to pass on criticizing a mother for defending her son.

She is entitled to her opinion.

I base my opinion on the evidence.

The case is starting to smell like decomp to me.

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Criminal motions practice in Florida

April 4, 2013

Thursday, April 4, 2013

Good afternoon.

I write today to provide a possible explanation for the cancellation of the April 2nd hearing.

No motion was pending and she was not under any obligation to check with counsel to verify that nothing was in the works before cancelling the hearing.

When a lawyer files a motion in the circuit court clerk’s office asking the court to do something, he also should file a memorandum of legal authorities in support of the motion. In addition, he must file a notice of the date, time and place where a hearing on the motion will take place.

Copies of the three documents must be provided to opposing counsel with sufficient lead time to file a response.

Copies also must be provided to the court.

This formal procedure can be ignored, if the parties agree that something must be done. In that situation, the parties can prepare an agreed order and present it to the judge for signature without a hearing.

At the last hearing, Judge Nelson told counsel that she was going to tentatively schedule the next hearing for April 2nd even though no motions were pending. She also told counsel that she was going to be on vacation that week, but still in town and available to hold a hearing on April 2nd, if needed.

Several weeks went by during which neither side filed a motion.

On Monday, March 25th, with no motion pending, she cancelled the hearing.

Mark O’Mara filed a motion later that afternoon and a second motion the next day. Both motions seek sanctions, costs and attorney’s fees imposed against BDLR.

BDLR filed an epic response denying any wrongdoing.

I believe the defense motions are frivolous and will be denied.

If O’Mara still intends to proceed with his frivolous motions, he will have to note them for hearing on April 30th, which is the next available date for a hearing.

He really should reconsider those motions.

Whether he will do so remains to be seen.

Go here to review the Florida Rules of Criminal Procedure.

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Using motions to disclose information in depositions is a sleazy tactic

April 3, 2013

Wednesday, April 3, 2013

Good morning.

I believe that we have completed our analysis and discussion regarding whether the use of doxing and breitbarting to intimidate and assassinate a person’s character constitutes witness intimidation, if used to discredit and intimidate a witness in a murder case.

The clear answer is “Yes.”

Moreover, I believe the two efforts by the defendant’s supporters to discredit and intimidate Dee Dee, which successively targeted two innocent girls named Dee Dee, constituted at the very least criminal attempts to intimidate a witness.

Since the perpetrators proudly declared their intent to intimidate the real Dee Dee when they mistakenly went after the wrong Dee Dees, and there is no doubt that the real Dee Dee found out about and was intimidated by those efforts, which were reported by the media, I believe the perpetrators already have committed at least two completed offenses of witness tampering.

I say “at least two,” because each lie, misrepresentation or threat is a completed crime. For example, 10 lies, misrepresentations or threats targeted against one witness constitutes 10 separate crimes or counts of witness intimidation.

Needless to say that the people who have committed these crimes are in deep trouble, even if they only get charged with attempted witness intimidation.

Are they stupid enough to continue their search for the right Dee Dee?

Only time will tell.

They have failed to demonstrate even a scintilla of intelligence, so I recommend against betting the ranch that they will stop.

By endorsing the CTH as a legitimate website and source of helpful information and ideas to use in defending GZ, Mark O’Mara has only himself to blame if the public associates him with the unlawful efforts to intimidate Dee Dee.

* * * *

Now, I want to take a look at O’Mara’s use of motions to disclose information that should not be disclosed.

Xena raised this issue yesterday when she asked me if depositions are supposed to be released to the public.

I replied that the answer is “No.”

She responded,

Thank you. O’Mara did manage to get in parts of one — IIRC, Santiago, that he included as an Exhibit with a Motion.

I believe O’Mara has been deliberately publicizing information, which he knows should not be publicized, by appending it to a marginally appropriate motion that he creates to serve as a vehicle to publicize the information in a manner that provides him with plausible deniability.

In other words, he has not been filing these motions in good faith.

He then incorporates the publicized information into his propaganda campaign to win the case in the court of public opinion.

For example, despite knowing that a police officer’s opinion regarding the defendant’s guilt or innocence is inadmissible at trial, he publicized Santiago’s deposition to support his propaganda claim that the Sanford Police Department believed the defendant killed Trayvon in self-defense.

Fortunately, BDLR quickly shut him down in court when he handed him Serino’s three or four drafts of the Capias request in which Serino considered charging the defendant with murder or manslaughter and ultimately settled on manslaughter.

I think it’s pretty clear that O’Mara was attempting to create and exploit a difference of opinion regarding the defendant’s innocence between the local SA and hometown police department versus the Jacksonville SA and the FDLE. I think he hoped to hijack and derail the jury inquiry into an are-you-going-to-trust-and-believe-your-hometown-law-enforcement-officials or the outsiders that the governor was forced to select for political reasons unrelated to what actually happened.

Notice that despite not mentioning race, that particular strategy is all about exploiting racism. The argument is little more than a transparent dress concealing a bloated and maggot infested corpse.

This is a good example of what lawyers mean when they refer to “playing the race card.”

I have to admit that I am fantasizing that there will come a day when O’Mara schedules a press conference and no one shows up.

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Dee Dee is an innocent witness to a murder and must be protected from breitbarting

March 31, 2013

Sunday, March 31, 2013

Peace, Joy and Freedom to all:

I begin with a confession. I have been awfully slow to identify the core issue presented by W8, who was assigned a fake name (Dee Dee) by the prosecution to protect her privacy. That alone should have been sufficient to trigger my curiosity. I could offer some excuses, but that would detract reader attention from where it should be.

Mark O’Mara is changing the practice of criminal defense from winning the case in the courtroom to winning the case before trial in the court of public opinion. He uses the internet and the media to dispense false information to the public about the case and to discredit and intimidate prosecution witnesses by character assassination.

For example, he has enlisted the support of two reporters at the Orlando Sentinel, Rene Stutzman and Jeff Weiner, who report the information that he gives them on a daily basis as “news. He also has endorsed a website (i.e., the Conservative Tree House) as a legitimate source of ideas and assistance. He also uses motions for discovery and motions to reconsider or clarify prior court orders as a vehicle to repeat his false narrative.

Intentionally dispensing false information about the case to the media is a low-risk strategy with high-reward potential, since the the media is willing to report the defense statement without reviewing it for accuracy and the prosecution is prohibited from commenting about the case.

Although anyone who is familiar with the evidence released to the public via the State of Florida’s remarkable Sunshine Law knows that the media consistently reports a false and misleading narrative favorable to the defense, there is little that we can do as individuals to correct false information reported by the media.

Fortunately, we can do our part here in this blog and others like it to identify and correct false information. Unfortunately, however, the national media prefers to ignore us and instead provide Robert Zimmerman, Jr., with multiple opportunities to deny that anyone in the Zimmerman family is racist and to proclaim that his brother, George Zimmerman, is a decent American who acted in self-defense to prevent Trayvon Martin from killing him with his bare hands. Never mind that Trayvon was an unarmed 17-year-old kid walking home in the rain talking via cell phone to his girlfriend in Miami when he supposedly launched this attack. Move along. There is nothing to see here, folks.

That brings me to O’Mara’s second strategy, using character assassination to intimidate witnesses and destroy their credibility before trial.

Character assassination has been used for many years to discredit and defeat political opponents and win national elections. If you should visit the Conservative Treehouse, take a look at the banner on the home page. You will see a shrine to a person described as a great American patriot and within that shrine you will see a photo of the man to whom the site has accorded godlike status. The man depicted in that photo is Andrew Breitbart who so perfected the use of manufactured evidence to support false accusations against political opponents that his name has entered our lexicon as a new verb. To Breitbart someone means to destroy that person’s reputation with a campaign of malicious lies based on manufactured or doctored evidence.

My wife and I have been subjected to a vicious and continuing campaign of character assassination by lie for daring to operate a blog that promotes evidence-based discussions of the Trayvon Martin killing. We are not alone. Sybrina Fulton, Tracy Martin, Benjamin Crump, Natalie Jackson and many others, including Trayvon Martin, the innocent victim of the killing, have been subjected to a similar, if not worse campaign of lies.

That brings me to Dee Dee. As a victim who continues to endure breitbarting, I have some idea how she must feel knowing that two innocent girls in Miami, whose only crime was to have been named Dee Dee, were successively breitbarted by mistake. I imagine she also knows about the doxing and breitbarting of W9 (the defendant’s cousin) whose only crime was to have reported to police that George Zimmerman sexually molested her for 10 years beginning when she was 6-years-old and he was 8-years-old.

I know that if I were Dee Dee or Bernie de la Rionda I would not believe that Mark O’Mara would honor his duty as a lawyer and officer of the court to assure that no information that might assist in identifying Dee Dee is leaked from his office.

I am well equipped to survive breitbarting because I am self-employed with this blog and I have the strength, willpower and self-assurance of a warrior forged in the heat and pressure of high stake courtroom battles during a long career. I chose to create and operate this blog and I accept responsibility for what we do here.

Dee Dee is a child and she did not choose to be a witness to a murder. Yet, she is and I worry about her. The media and the general public appear not to realize that she too is a victim of the defendant’s violent act on February 26, 2012. I wonder if she is plagued with panic attacks and nightmares generated by a brain stuck on a spin cycle of fragmented memories, what-ifs, and if-onlys. No one, especially a child, should be subjected to such torture.

The realization that she also must know that she has been targeted for destruction by breitbarting frightens me and makes me wonder how any human being could be so full of hate that they would even consider hurting her, let alone setting out to destroy her with lies.

I can only regard Mark O’Mara with horror and disgust

The god of my understanding and belief is not going to be OK with this.

I think Bernie de la Rionda is doing his best to balance his duties as a prosecutor, including his duty to comply with the Brady rule, with his duty as an empathetic member of the human race to protect her from the coming onslaught.

I applaud his decision to withhold the information that O’Mara requested until the night before the hearing on the defense request for a subpoena duces tecum.

He did not violate the Brady rule because he disclosed the potential impeachment information a week before deposition, which is the first time that O’Mara could have used it for a legitimate purpose. O’Mara suffered no inconvenience and the defendant’s constitutional rights to due process of law and a fair trial have not been violated.

Mark O’Mara’s motions for sanctions, fees and costs are frivolous because they are not supported by law.

I will close with this warning. Breitbarting a witness in a murder case is witness intimidation under Florida law. Anyone convicted of that crime can be sentenced to life in prison.

I sincerely hope that anyone who participates in the coming effort to intimidate Dee Dee will be charged, convicted and sentenced to a very long and unpleasant time in prison.


The Prosecution did not violate the Brady rule in Zimmerman case

March 30, 2013

Saturday, March 30, 2013

Good morning everyone.

I realized at approximately 3:30 am this morning that I forgot to mention several extremely important points in the articles and comments that I have posted recently about the Brady rule and the timing of the exculpatory evidence disclosures to the defense.

The Brady rule imposes an obligation on the lead prosecutor and case agent in each case to periodically review the case file for the specific purpose of identifying exculpatory evidence. Since police investigations typically continue until a final order terminates a case after verdict and sentencing, a case file will continue to grow documenting the investigation and the discovery of new information. Prosecutors also add their stuff to the file. This feature of the criminal justice system frustrates judicial efforts to establish a uniform drop-dead deadline by which the prosecution must disclose exculpatory evidence to the defense in any given case.

Therefore, the general practice is to disclose exculpatory evidence to the defense as soon as practicable after it has been obtained and identified. One might reasonably expect to see multiple disclosures of exculpatory evidence prior to trial and even during trial.

A major exception to this practice was developed to deal with unusual or exceptional circumstances that warrant delaying the disclosure of exculpatory evidence to the defense until the defense must have it to prepare for a deposition, pretrial hearing or the trial.

We have that situation in this case due to the well documented need to protect the privacy and safety of W8 (Dee Dee) from harassment and intimidation by the defendant’s supporters.

The vast majority of Brady violations involve situations where the prosecution had exculpatory evidence, but never disclosed it to the defense. In most cases a new team of defense investigators independently discovers the exculpatory evidence several years later during the run-up to filing a state or federal habeas petition after the judgment and sentence of the trial court was affirmed by appellate courts.

Tthe Brady rule requires a showing that the exculpatory evidence withheld from the defense was so important that the outcome of the trial likely would have been different, if the prosecution had disclosed it to the defense before trial. In other words, absent a showing of materiality, the prosecution’s failure to disclose exculpatory evidence in any given case will be deemed harmless error.

Finally, the importance or materiality of that exculpatory evidence relative to rest of the evidence admitted at trial cannot be determined until after the trial has concluded.

For this reason alone, the defense claim that the prosecution violated the Brady rule should be summarily dismissed as premature, impossible to determine, and frivolous.

Nevertheless, let us briefly review the available facts to see if the timing of the prosecution disclosure disadvantaged or prejudiced the defense.

There is no evidence that it did.

ASA John Guy contacted MOM the evening before the court hearing in early March and told him that there were no hospital records to confirm Dee Dee’s statement that she did not attend the funeral and the wake because she was in the hospital.

Because of that disclosure, the judge ruled that the defense motion for a subpoena duces tecum of Dee Dee’s hospital records was moot.

The defense deposition of Dee Dee a week later could not have been adversely affected by the timing of the disclosure because the defense had the information for a week and used it to question Dee Dee.

The trial is still three months down the road, so I do not see any possibility of prejudice to the defense from the timing of the disclosure.

In conclusion, I do not see any prejudice to the defense caused by the delay between the defense request for the hospitalization records last fall and the recent disclosure.

As I have already mentioned, the prosecution has legitimate reality-based concerns to protect the privacy and safety of Dee Dee. I refer of course to the concerted effort by the defendant’s supporters to successively intimidate two girls whom they mistakenly believed to be the real Dee Dee.

Therefore, the delay in disclosing the evidence requested by the defense not only failed to harm the defense, it was reasonable and necessary to protect Dee Dee.

For all of these reasons, the defense motion is frivolous and should be denied.

Finally, the responses by the two reporters for the Orlando Sentinel and the national media to BDLR’s response to the defendant’s frivolous motions demonstrated that they have not yet grasped the facts in this case and the simple truth that the defendant has no defense.

Pathetic fail.

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Bernie’s epic smackdown of Mark O’Mara

March 29, 2013

Friday, March 29, 2013

Good morning, everyone!

I bow down in absolute awe of Bernie de la Rionda’s epic Shakespear-style smackdown late yesterday of the defense team, their internet troll advisers, and the reporters at the Orlando Sentinel who labor so diligently to spread the defense message. I have never read anything like it and it’s so perfect that I think I would only diminish its impact were I to cut and paste bits and pieces of it into a new post.

It’s as close to perfection as I think is humanly possible and Bernie de la Rionda deserves all of the credit for producing this gem.

Make no mistake. Bernie de la Rionda’s masterpiece is so superior to any other formal written legal argument that I have read or heard about that I believe it will achieve immortality as an example of the elegant smackdown.

Read and savor it here.

In other news yesterday, on Monday Judge Nelson issued without a hearing a terse three sentence order denying the defendant’s motion for reconsideration and clarification of her previous order denying the defendant’s motion to depose Benjamin Crump. The defendant’s supporters are in an uproar because Judge Nelson did not conduct a hearing or provide an explanation or justification for the order.

I held my breath and performed a quick survey of comments posted at right-wing websites to get an idea of what they are saying. I saw comments asserting the existence of a conspiracy against the defendant and his lawyers to rig the outcome of the trial so that the innocent defendant is convicted. President Obama is supposedly telling Judge Nelson what to do and she is in cahoots with Bernie de la Rionda to achieve the desired outcome. The lack of a hearing and the absence of a written opinion supporting her order are cited as proof that this conspiracy exists.

They apparently do not realize that judges are not required to hold a hearing before deciding whether to grant a motion to reconsider a previous order. They also appear not to know that the standard practice nationwide in state and federal courts is for judges to summarily decide motions to reconsider by granting or denying them without further explanation.

Needless to say, evidence of judicial compliance with a standard practice is not evidence of a conspiracy to deny the defendant a fair trial.

Finally, did y’all notice BDLR’s comments about O’Mara’s behavior at the the first bail hearing. That was quite a dramatic and disquieting shot across O’Mara’s bow introducing the possibility that O’Mara might be prosecuted for his role in assisting his client to conceal assets and a second passport from Judge Lester at the hearing.

If I were O’Mara, I would take that threat seriously and consult with counsel before deciding whether to respond.

Of course, the prosecution would have to prove beyond a reasonable doubt that he knew and acted with intent to deceive Judge Lester at the bail hearing about the second passport and the thousands of dollars that had been donated to his client via the Paypal account. I suspect BDLR decided not to pursue that matter last year because he realized that he would need solid and convincing evidence to independently confirm the defendant’s disclosures in the recorded jailhouse phone calls.

BDLR knows that the defendant is an habitual liar and no jury would convict O’Mara on his word alone. He is certainly smart enough to realize that his emotional response to O’Mara’s frivolous accusations is not a legitimate factor to consider in deciding whether to charge O’Mara with a crime. This leads me to ask what has changed since last summer that would independently confirm that O’Mara knew about the money and the second Passport at the time of the hearing?

Has Shellie Zimmerman flipped on George Zimmerman and provided the missing link?

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