Judge Debra Nelson denies defense motion for judgment of acquittal

July 5, 2013

Friday, July 5, 2013

Good evening:

Judge Debra Nelson summarily denied a defense motion for a judgment of acquittal this afternoon after the State rested its case.

The first witness called by the defense was the defendant’s mother, Gladys Zimmerman, who identified him as the person who uttered the terrified death shriek that is audible in the background of a 911 call. However, she admitted on cross examination that she had never heard him scream for help or cry out like that.

Her testimony contrasted sharply with testimony this morning by Sybrina Fulton, Trayvon Martin’s mother, who identified him quietly and sorrowfully without equivocation.

The State rested its case after presenting the testimony of Dr. Bao, the Assistant Medical Examiner who performed the autopsy on Travon Martin. He described the gunshot wound as direct from front to back with the hollow point bullet passing through the front and rear wall of the right the ventricle before coming apart and scattering in different directions finally coming to rest in the pericardial sac.

He testified that Trayvon would have been conscious and in pain from 1 to 10 minutes but unable to move or speak during that time. His testimony contradicts the defendant’s claim that Trayvon sat up and said, “You got it,” or “You got me.”

It also makes it extremely unlikely that he did not know that Trayvon was dead before the police arrived, contradicting his claim on the Sean Hannity Show that he did not know that he’d hit Trayvon when he fired the shot and did not find out he was dead until someone told him at the police station later that evening.

The defendant’s claim on the Sean Hannity Show that he has no regrets, would not do anything differently, and everything happened according to “God’s plan,” is chilling in light of today’s testimony.

Judge Nelson recessed the trial for the weekend until Monday morning at 9 am EDT.

Between now and then, the defendant will have to decide whether to testify or remain silent.

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Many Blessings to Sybrina

June 13, 2013

From LLMPapa

and all of us.


Settlement agreement is dreadful news for George Zimmerman

April 8, 2013

Monday, April 8, 2013

I asked a question yesterday and did not get an answer.

The question was, Did Mark O’Mara advise the HOA to settle the Fulton-Martin lawsuit?

Rene Stutzman at the Orlando Sentinel provided some additional information today.

That secret homeowners association settlement with Trayvon Martin’s family may not remain secret much longer.

Seminole County Clerk of Courts Maryanne Morse has written a letter to Trayvon’s family attorney, Benjamin Crump, telling him that she doesn’t think it meets the standard of a confidential filing so she intends to make it public in 10 days.

Even so, the total dollar figure paid out by the association will likely remain a secret. That’s because Crump edited it out before he put the 12-page document in the court file Thursday.

It’s believed to be more than $1 million.

Stutzman also revealed that Tracy Martin and Sybrina Fulton settled their claim against the HOA without filing a lawsuit. Therefore, the settlement agreement has not been reviewed by a judge.

We know that the Traveler’s Insurance Co., was not a party to the agreement because the HOA did not purchase the insurance until March 30, 2012, a little over a month after the defendant shot and killed Trayvon Martin.

Why did Benjamin Crump file the settlement agreement in the GZ criminal case?

Here’s Stutzman again,

Why Crump had it placed in the file in the first place remains a mystery. He did not return phone calls from the Orlando Sentinel. But his clients, Sybrina Fulton and Tracy Martin, were deposed last month by Zimmerman’s attorneys and were likely asked about the settlement.

In an interview last month, when asked if the settlement was a specific figure between $1 million and $2 million, Crump would not say.

“I have no comment on the subject,” he said. “I know you didn’t get that from me.”

There is an unconfirmed rumor that the New York Times reported in February that Mark O’Mara said Tracy Martin and Sybrina Fulton had rejected a $1 million settlement offer.

Stutzman said today about the settlement amount, “It’s believed to be more than $1 million.”

Sundance Cracker at the treehouse, which is Mark O’Mara’s internet site of choice, reported yesterday that the settlement is closer to $2 million.

Difficult to draw any conclusions without more information, but I sincerely doubt the claim was settled for nuisance value because, given the defendant’s waiver of an immunity hearing and a substantial likelihood that a jury will reject his claim of self-defense, Tracy Martin and Sybrina Fulton would have no incentive to settle the case for peanuts. Better to wait and sue him and the HOA together after he is convicted when, basically, the sky would be the limit.

I figure they were in the driver’s seat and could afford to demand a substantial sum of money to cut HOA loose before trial.

This settlement agreement is dreadful news for the defendant.

BTW, Dee Dee definitely is not the prosecution’s star witness.

The prosecution’s star witness is the defendant and that is why a jury will convict him of murder in the second degree.

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Did Mark O’Mara advise the HOA to settle the Fulton-Martin lawsuit

April 7, 2013

I am hoping to find out today if Mark O’Mara played any role in advising the HOA to settle the wrongful-death lawsuit filed by Tracy Martin and Sybrina Fulton.

Sundance Cracker at The Conservative Treehouse claims that he did. This is the website O’Mara has publicly referenced with approval as a source of ideas.

Since Benjamin Crump represents Tracy Martin and Sybrina Fulton that would certainly qualify him as opposing counsel for purposes of the silly deposition issue.

More importantly, he would have a conflict of interest because he would be in possession of inside information obtained from his client, plus all of the discovery that has not been released to the public, and advising the HOA to settle before the criminal trial.

That’s the equivalent of saying:

GZ’s self-defense claim isn’t going to fly. He’s going to be convicted of murder 2, so you better cut your losses to a minimum by settling now.

If true, that’s a conflict of interest and a major violation of a lawyer’s obligation to maintain client confidentiality.

Imagine how you would feel, if you were George Zimmerman.

O’Mara should be kicked off the case and disbarred, if he did that.

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Trayvon Martin’s parents settle lawsuit against HOA for more than $1 million

April 5, 2013

Friday, April 5, 2013

The Orlando Sentinel is reporting today that Trayvon’s parents, Sybrina Fulton and Tracy Martin, have settled their wrongful death case against the Homeowner’s Association for more than $1 million.

The parties are settling the matter to avoid litigation without admitting responsibility and the terms of the settlement agreement are subject to a non-disclosure agreement.

Trayvon’s parents still intend to sue George Zimmerman separately.

The settlement agreement should not have any effect on the criminal case but it does indicate that the HOA has little confidence in the viability of the GZ’s claim of self-defense.

Of course, we already knew that from our review of the evidence and the defense team’s decision to abandon an immunity hearing.

Congratulations to Sybrina Fulton and Tracy Martin!

This will not bring back Trayvon, but it’s an important achievement and milestone in the long road seeking justice for Trayvon.

H/T to Benjamin Crump: Well done, sir.

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Defense files pretty glittering balloon to keep hope alive in Zimmerman case

March 26, 2013

Tuesday, March 26, 2013

The defense filed a specious motion yesterday afternoon in the Zimmerman case seeking a sternly worded judicial rebuke of alleged prosecutorial misconduct, imposition of terms (i.e., a fine), and attorney’s fees.

This is yet another whining complaint about W8’s (Dee Dee) statement that she did not attend Trayvon Martin’s funeral because she was not feeling well and went to the hospital.

I think it is an attempt to distract the public’s attention from the defense decision several weeks ago to forego an immunity hearing, thereby implicitly admitting that it has no defense. Instead, by resorting to the well known propaganda technique of repetition while aided and abetted by a compliant media ever so eager to repeat anything they say, regardless of merit in the self-interest of securing higher ratings and increased profits by providing so-called “balanced” coverage that promotes the illusion of a legitimate defense, the defense seeks to link the words “liar” and “perjurer” with Dee Dee so that the public, and hopefully the jury, will already have decided to disregard her testimony.

Watch the pretty glittering balloon and for God’s sake don’t you dare look at my hands.

In this latest iteration of the Dee-Dee-is-a-liar mantra, the defense asserts that she admitted during her deposition on March 13th that she lied about going to the hospital when Benjamin Crump interviewed her last March and later to Bernie de la Rionda because Trayvon’s mother, Sybrina Fulton, was present.

The defense claims that this revelation constitutes exculpatory evidence that the prosecution knew about and should have disclosed to the defense months ago. Of course, the defense would have known this information months ago, if it had bothered to depose Dee Dee, so the defense claim is specious.

As I have previously pointed out, Dee Dee’s admission that she lied about going to the hospital is not material, so it cannot be the basis of a perjury charge as it does not make it more or less likely that the defendant acted in self-defense when he killed Trayvon Martin. It’s what lawyers and judges call impeachment on a collateral matter.

I am certain Mark O’Mara and Don West know this and I believe it’s unfortunate that they have repackaged their war against Dee Dee as unethical prosecutorial misconduct.

When Judge Nelson inevitably denies the defense motion, can we expect the defense to follow-up with a motion to recuse herself from the case?

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Stand Your Ground Explained

April 13, 2012

Florida self-defense law is a bit unusual, so I am going to explain how it works.

First, as I have stated in several posts here, here, and in comments to other posts, a person had a duty to retreat under the common law before he or she would be justified in using deadly force in self-defense. The SCOTUS abolished common law crimes in the mid sixties because they were a mish-mash of confusing and in some instances unintelligible definitions.

All crimes and their defenses are now defined by statute, or municipal ordinance and many of them are based on the Model Penal Code, which was put together by a panel of lawyers, judges and law professors. Most state legislatures adopted the Model Penal Code entirely, with some exceptions in areas where, for one reason or another, they wanted to retain a former law or procedure.

Second, most of the western states rejected the duty to retreat and you will find no mention of it in their self-defense or justifiable homicide statutes. Stand your ground, or SYG statutes merely abolish the duty to retreat. So, jurisdictions that have adopted SYG have merely joined the western states that long ago eliminated the duty to retreat.

Third, SYG is not a license to kill. Although a person may stand their ground without first retreating or attempting to retreat, they cannot use more force than is reasonably necessary to defend themselves. In other words, they may use such force as is reasonably necessary to prevent being assaulted.

The word “reasonable” means the test is objective, not subjective. That is, it’s based on the objective set of facts and circumstances, as opposed to a person’s perception of the facts and circumstances. In other words, a person may use such force as a reasonable person in the same situation would perceive as reasonably necessary to use in preventing an assault.

If they use excessive force, they become an aggressor and no longer are acting in self-defense. At this point, the original aggressor becomes the defender and now can use reasonably necessary force to defend against the use of excessive force.

Therefore, by definition, an aggressor cannot act in self-defense.

The use of deadly force is limited to those situations where, based on the objective set of facts and circumstances, a reasonable person would believe it was reasonably necessary to use deadly force to prevent being killed or suffering “great bodily harm.”

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

Fourth, there are no clear lines of demarcation during a battle between two people that separate the use of reasonably necessary force from the use of excessive force. At some point the line is crossed, for example, if A slaps B in the face and is about to slap B again, B cannot strike A with a baseball bat over the head to prevent another slap. Judges and juries do not like aggressors and when their victims get the upper hand and resort to excessive force, they are inclined to believe that the aggressor deserves it. In practice, therefore, an aggressor takes his victim as he finds him and if he loses the fight, no one is going to be sympathetic, and the person who whupped him will not be charged, unless his response was so extremely over the top that he basically used the initial assault as an excuse to kill or severely injure the person.

Fifth, is the concept of burden of proof and this is where Florida practice may differ from the law of self-defense in your state.

Under Florida law, a defendant can file a pretrial motion in a murder case under the SYG law asking the judge to dismiss the murder charge asserting that he stood his ground and his use of deadly force in self-defense was reasonably necessary to prevent being killed or suffering serious bodily injury. The court must then hold an evidentiary hearing.

This is how it will happen in the Zimmerman case:

Zimmerman must prove each of the following elements by a preponderance of the evidence (i.e., more probable than not) at that hearing:

1. He was not engaged in an unlawful activity (i.e., not committing a crime);

2. Trayvon Martin attacked him in a place where he had a right to be; and

3. He reasonably believed that his life was in danger or that he would suffer great bodily injury, if he did not use deadly force to defend himself. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

If the judge finds that he proved each of these elements by a preponderance of the evidence, then the judge must dismiss the murder charge and Zimmerman cannot be further prosecuted for the killing (i.e., for some lesser charge).

On the other hand, if the judge finds that he failed to prove each element by a preponderance of the evidence, then the judge must deny the motion to dismiss and the case will proceed in the usual manner.

The State can appeal a dismissal of the murder charge.

If the case proceeds to a judge or jury trial, then the burden of proof shifts to the prosecution, which must prove beyond a reasonable doubt that Zimmerman committed second degree murder (i.e., that he knew his actions were reasonably certain to kill and that he caused Martin’s death by committing an “imminently dangerous” act that showed a “depraved” lack of regard for human life). Due to an allegation in the information that he committed the crime with a firearm, the charge carries a minimum mandatory sentence of 25 years in prison and a maximum of life, if he is convicted.

The defendant also gets a second shot at his self-defense claim, except now the prosecution must prove that he did not kill Trayvon Martin in self-defense, either because Zimmerman was the aggressor or he used excessive force (i.e., he was acting unlawfully).

The prosecution’s affidavit of probable cause filed in support of the information charging Zimmerman with second degree murder asserts that he decided Martin was a criminal and he pursued and confronted him contrary to the police dispatcher’s specific admonition not to do so (i.e., he was the aggressor and acting unlawfully).

In other words, the prosecution will be attempting to prove that Zimmerman had no right to stand his ground because he was the aggressor. Zimmerman assaulted Martin and, under the prosecution’s theory of the case, Martin had the right to stand his ground and use reasonable force to defend himself.

I think the critical question that will decide the outcome of this case will be whether Zimmerman’s statements stand-up to scrutiny. If the prosecution can materially discredit his statements, the judge will deny his pretrial motion to dismiss under the SYG statute and the jury will find him guilty of second degree murder.

For those of you who believe the prosecution has no case because the person screaming for help in the background of the 911 call was George Zimmerman, even though he had a gun and two audiologists using different methodologies have independently excluded him as the person screaming for help to a reasonable scientific certainty, please consider the effect of the following testimony on the judge and the jury.

PROSECUTOR: Can you identify the voice screaming for help in the backgound — the scream that abruptly ends with a gunshot?

SYBRINA FULTON: Yes, I can.

PROSECUTOR: Are you certain?

SYBRINA FULTON: Yes, I am.

PROSECUTOR: Please tell the ladies and gentlemen of the jury who is screaming for help.

SYBRINA FULTON: That is my son, Trayvon, and those are the last words that I will ever him speak.

PROSECUTOR: Thank you. I have no further questions.


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