Donald West files frivolous, dishonest and intentionally misleading document in Zimmerman case

May 22, 2013

Wednesday, May 22, 2013

Good afternoon:

The defense filed a silly and offensive motion yesterday in the Trayvon Martin murder case titled, Defendant’s Reply to State’s Motion for Protective Order/Motion in Limine Regarding Toxicology.

I call it silly and offensive because it makes the absurd argument that the presence of a trace amount of marijuana in Trayvon Martin’s autopsy blood sample makes it more probable than not (i.e., the test for relevancy) that Trayvon Martin attacked the defendant without provocation and attempted to beat him to death with his bare hands.

Welcome back to 1936 and Reefer Madness. Come on, son!

The State seeks to exclude any testimony regarding Trayon Martin’s toxicology report that shows the use of marijuana around the time of his death, February 26, 2012. As part of the autopsy protocol, the Medical Examiner submitted Trayvon Maritin’s blood for laboratory analysis. Among the findings includes a positive level for THC and its metabolites. The active THC was measured at 1.5 ng/ml whereas the metabolite was measured at 7.3 ng/ml. This level is sufficient to cause some impairment (although it is connsidered to be less than that required for a DUI arrest) according to the state’s toxicologist, Dr. Bruce Goldberger. At his deposition, Dr. Goldberger cited to the research of Dr. Marilyn Heustis, who studies the residual effect of marijuana on cognitive functioning. Dr. Heustis has found that measurable impairment continues for days or weeks in chronic users. Dr. Godlberger opined that Trayvon Martin may have used marijuana within a couple of hours of his death or it could have been longer than that depending on whether Trayvon Martin was chronic user or an occasional user. From other evidence in the case, it is known that Trayvon Martin brought marijuana with him from south Florida to use while he was in Sanford and he used it at least one time after arriving in Sanford prior to his death. Trayvon Martin was suspended from school for possessing a baggie containing marijuana residue and was known to smoke marijuana with his friends.

In George Zimmerman’s NEN call to the police, he described the person later identified as Trayvon Martin, as appearing as though “he was on drugs.” Additionally, on close inspection of Trayvon Martin’s appearance at the 711, where he was recorded on video within ah hour of his death, he “sways” at the counter as if he is under the influence of some substance. Taken altogether it is likely that Trayvon Martin was under the influence of marijuana at the time of his death and that his thinking and judgment were impaired, at least to some degree. This is relevant evidence for the jury to consider when it evaluates TM actions that night, and the jury should be allowed to give whatever weight it believes it should.

There is so much wrong here that I almost do not know where to begin.

First, West should have attached an affidavit from Dr. Heustis. He did not, so I checked her out on PubMed. A search using “Marilyn A. Heustis and cognitive impairment,” pulled up two articles:

1. Cannabis effects on driving skills.

The Summary states:

Differences in study designs frequently account for inconsistencies in results between studies. Participant-selection bias and confounding factors attenuate ostensible cannabis effects, but the association with MVA often retains significance. Evidence suggests recent smoking and/or blood THC concentrations 2-5 ng/mL are associated with substantial driving impairment, particularly in occasional smokers. Future cannabis-and-driving research should emphasize challenging tasks, such as divided attention, and include occasional and chronic daily cannabis smokers.

2. The dose effects of short-term dronabinol (oral THC) maintenance in daily cannabis users.

The Conclusion states:

Dronabinol’s ability to dose-dependently suppress cannabis withdrawal may be therapeutically beneficial to individuals trying to stop cannabis use. The absence of gross cognitive impairment or side effects in this study supports safety of doses up to 120mg/day. Continued evaluation of dronabinol in targeted clinical studies of cannabis treatment, using an expanded range of doses, is warranted.

(Emphasis supplied)

Ahem! Now we know why there is no affidavit from Dr. Heustis.

Next, we have,

Dr. Godlberger opined that Trayvon Martin may have used marijuana within a couple of hours of his death or it could have been longer than that depending on whether Trayvon Martin was chronic user or an occasional user.

Not terribly helpful, but wait . . .

From other evidence in the case, it is known that Trayvon Martin brought marijuana with him from south Florida to use while he was in Sanford and he used it at least one time after arriving in Sanford prior to his death. Trayvon Martin was suspended from school for possessing a baggie containing marijuana residue and was known to smoke marijuana with his friends.

The famous reliable witness known as “It” knows that Trayvon brought marijuana with him. Funny how this fella named “It” failed to provide an affidavit or even an address. Oh, well.

Next,

In George Zimmerman’s NEN call to the police, he described the person later identified as Trayvon Martin, as appearing as though “he was on drugs.” Additionally, on close inspection of Trayvon Martin’s appearance at the 711, where he was recorded on video within ah hour of his death, he “sways” at the counter as if he is under the influence of some substance.

Ah, yes. The always accurate and reliable eyewitness George Zimmerman, who would never think of giving a self-serving statement.

So, now we are down to swaying at the counter.

Yeah right.

How about the conclusion:

Taken altogether it is likely that Trayvon Martin was under the influence of marijuana at the time of his death and that his thinking and judgment were impaired, at least to some degree. This is relevant evidence for the jury to consider when it evaluates TM actions that night, and the jury should be allowed to give whatever weight it believes it should.

Put another way, this legal pleading is pure speculation based on a dishonest premise and no evidence.

What really pisses me off about Mr. West’s pleading is the underlying and unspoken assumption that Trayvon Martin deserved to be killed because Mr. West believes he was high on marijuana.

Don West should be assessed terms for contempt of court by filing a frivolous, dishonest and intentionally misleading reefer-madness document.

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Zimmerman: Judge Nelson Should Fine Mark O’Mara $1,500 for Publicizing his Motion for Prophylactic Sequestration

October 24, 2012

I believe Judge Nelson should fine Mark O’Mara $1,500 for posting his Motion for Prophylactic Sequestration of Witnesses in the Zimmerman case on his website.

I criticized this bizarre motion in Zimmerman: Defense Motion for Prophylactic Sequestration of Witnesses Reaches a New Low.

I said,

First, O’Mara is revealing the opinions of cops overseeing an investigation. Their opinions are irrelevant and inadmissible. The evidence is whatever it is and it alone constitutes probable cause to believe a crime was committed or it does not.

Second, revealing their opinions in a motion is an underhanded way of creating an excuse to publicize that they opposed charging Zimmerman with a crime.

Third, if they were genuinely concerned about a need to order witnesses to not collaborate with each other, they should have filed the motion under seal.

Fourth, it would have been in the best interest of the defense to have the witnesses collaborate with each other so that they all objected to filing criminal charges, but that sounds like what they were going to do anyway. Therefore, there was no need for the relief he sought in the order.

I concluded:

For all of these reasons, seems pretty obvious to me that the real purpose of the motion was to publicize what should have been kept private; namely, that the brass did not want to charge Zimmerman.

The more that I think about this motion the more irritated I become.

The scope of permissible discovery is very broad and not only includes the right to discover all information relevant to the lawsuit; it also includes the right to discover all information that might reasonably be expected to lead to the discovery of relevant information.

Because the scope of permissible discovery is so broad, there have to be some limitations on what the lawyers can do with the information they obtain through discovery. Keeping the information private is one such limitation.

Let us now take a look at depositions.

Lawyers depose (i.e., question) the opposing party’s witnesses under oath in the office of the lawyer who represents the opposing party. Other than the two lawyers and the witness, the only person present is a certified court reporter who administers the oath to the witness and records everything said by the lawyers and the witness during the deposition.

There is no judge to rule on objections. Instead, objections are noted for the record and the witness answers the question. Later on, if the trial court orders the deposition published and it is read in open court, the judge can consider the objection and rule on it. Depending on the ruling, the answer given by the witness during the deposition may or may not be read in open court.

In extraordinary circumstances during a deposition, the lawyers may suspend it to go to the courthouse to seek a ruling on an objection before resuming. The basic idea, however, is to allow the lawyers to conduct a deposition to create a thorough and private record of witness responses.

I emphasize the importance of privacy because the scope of a deposition may intrude into sensitive and private matters that might embarrass a witness, or protected matters such as trade secrets that might compromise a business, if publicized.

O’Mara’s very public revelation, in his motion for prophylactic sequestration of witnesses, of what the witness disclosed during the deposition about the opinions of the members of the group of Sanford Police Department officials regarding whether to charge Zimmerman with a crime is a major game misconduct because he revealed private information that most of the members of that group did not believe Zimmerman should be charged. Not coincidentally, that information could benefit Zimmerman by influencing prospective jurors to believe that Zimmerman should not have been charged with a crime, let alone second degree murder.

Why is that bad?

The answer is that a jury verdict must be based only on the evidence admitted in court. The opinions of the police officials are not evidence and have no evidentiary value. The rules of evidence do not permit that type of testimony to be presented at trial because it might influence jurors to base their verdict on opinions or speculation of the police officials rather than the evidence.

O’Mara knows this or should know it and this is why he never should have filed his motion for prophylactic sequestration of witnesses. BTW, this is an extraordinary and unusual request that I have never heard of and I do not believe there is any legal authority that supports it. Nevertheless, he was so eager to publicize the dissenting opinions of the police officials that he filed the motion without citing any legal authority authorizing Judge Nelson to grant the relief he requested, despite a rule that requires a lawyer to cite legal authority in support of any request to have the trial court do something.

Then he published his motion on his website for all the world to see.

This is why I am so offended by what he did.

I would be furious, if I were Judge Nelson and I would strike the motion, hold him in contempt, and fine him $1,500. I would do this in open court at Friday’s hearing for all the world to see. I also would warn him that if he does it again, I would put him in the slammer for a week.

Then I would ask him to give me a reason why I should not impose a gag order as requested by the prosecution.

I would, of course, give due consideration to the Florida Sunshine Law and the public’s right to know what is going on. I would probably end up denying the motion for the gag order without prejudice. That would allow the prosecution to refile it, if it should decide to do so.

BOTTOM LINE: O’Mara needs to stop trying his case in the Court of Public Opinion.


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