I write this article with dread in that this scruffy little blog is in danger of becoming the “all Trayvon Martin all the time” spot on the Internet.  However, there are several new developments that are, as they say in the law, “ripe” for discussion.  In Update 24, I suggested Judge Debra Nelson was worthy of pity.  I may soon have to modify that formulation to suggest that she is, rather, pitiful.  And now, once more unto the breach, dear readers, once more.

THE DEE DEE LETTER:

Enclosed as an attachment to Deputy Special Prosecutor Bernard de la Rionda’s response to Zimmerman attorney Mark O’Mara’s motion for sanctions against him (Update 25) was a letter he represented as having been written by Dee Dee, who he called “this teenager.”  This is, in itself, significant as one of the subjects of O’Mara’s motion is the fact that de la Rionda knew that Dee Dee and Scheme Team attorney Benjamin Crump lied about her age in an attempt to keep her behind a curtain of juvenile secrecy for nearly a year when she was, in fact 18 when her statements were taken, first by Crump, and later by de la Rionda.  Calling her “this teenager,” while technically accurate—she is reportedly now 19—is certainly disingenuous.  She is, under the law and in practical fact, an adult.  De la Rionda, however, appears to wish to perpetuate the fiction that she is a juvenile.

In his response, de la Rionda argued that Dee Dee wanted to remain anonymous and did not want her identity revealed:  “Witness 8 did everything she could to not being [sic] identified, including using her nickname so that she would not be subjected to what is now happening to her.” 

What is now happening to her?  She’s been made the star witness in a murder case by de la Rionda and Crump, and has been caught in multiple lies, lies perhaps procured by them.  O’Mara is merely asking for the truth.  Is this not the purpose and goal of the search for justice?  De la Rionda must know that he ethically cannot keep any witness secret, certainly not from the defense, yet he tried to do just that.  He must also know that any witness must eventually be identified.

Any distress being experienced by Dee Dee is properly placed at the feet of Crump and de la Rionda, not O’Mara who is merely doing his job under the law, and doing it ethically.  Regarding the origin of Dee Dee’s letter, de la Rionda wrote:

See attached letter Witness 8 gave Victim’s mother, Sybrina Fulton, prior to the recorded telephone call with Trayvon Martin’s attorney, Benjamin Crump.

I include a screen shot of that letter here:

Dee Dee Letter

As with much else about this case, the letter, dated “March 19, 2012” is odd indeed.  There is no header or salutation.  Despite de la Rionda’s assertion that it was written to Sybrina Fulton, it is not addressed to her or to anyone else.  Personal letters are written for a purpose such as to inform, to persuade, to maintain a relationship, or in a case like this, to express regret, sympathy or to console.  This “letter” has none of those qualities.

There is no attempt to personalize the content, no attempt to reach out to the mother who lost her son, a son to whom Dee Dee was supposedly close, no expression of sympathy for her loss.  In fact, she closes with “thank you,” as though ending an impersonal request or form letter.

It is the impersonal, pseudo-legalistic content that is striking.  The text appears to be a dry run for Dee Dee’s two interviews.  In fact, it was dated March 19, 2012, which, coincidentally, is the same day Crump conducted his interview with Dee Dee.  We do know that Crump coached Dee Dee in that interview.  It takes no leap of logic to suspect he caused her to write this letter and coached her as to its content.  It has all of the elements of the de la Rionda interview (Update 11), but in rough draft form.  The primary differences are that this account is far less detailed, Zimmerman doesn’t reply to Martin’s initial verbal challenge, and she heard Martin “fall.”  What, I wonder, does that sound like over a cell phone?  Her final commentary is strange indeed:

In my mind I thought it was just a fight Then I found out this tragic story.  Thank you,

Of course, by the time she did the de la Rionda interview on April 02, 2012, the story had evolved considerably, and she no longer characterized the confrontation as a “fight,” which would undermine The Narrative.  This was also likely changed because the prosecution surely does not want Dee Dee testifying to her knowledge of any fondness for, or acting upon, violence on Martin’s part.  Her writing in the letter suggests that Martin might be quite comfortable with fighting and often engaging in it.  This too would be very bad for The Narrative.

What remains unknown, as O’Mara noted, is we still have no idea how Dee Dee came to the attention of Crump and the Prosecution, nor do we know the details of their interactions with her.  We do know the Scheme Team was present for her interview with de la Rionda, and that Sybrina Fulton was not only present for the interview, but was actually sitting next to her, and the interview took place in Fulton’s home.

We also don’t know why Dee Dee wrote this letter (I am assuming, for the sake of argument, that she did).  If we assume it simply appeared in Fulton’s mailbox one day–and we do not know that it was ever actually mailed–we have to ask why a teenager steeped in e-mail and texting would actually write a letter, something most contemporary teenagers do not know how to do.  Apart from school assignments—and many teens never have such assignments—many teenagers have never written and mailed a letter.  From its content, one must assume that Dee Dee, for whatever reason, felt compelled to tell Fulton of her involvement as a witness, providing a very brief, cold-blooded and cryptic account, but apparently has no social graces or empathy toward a woman who recently (February 26, 2012) lost her son.

There are two additional matters, but I don’t intend to make too much of them.  Notice that there is distortion–what appears to be copier “noise”–near the two exclamation points following “me,” which may be the result of erasure.  Also notice the size of the redaction, apparently of Dee Dee’s name.  Notice the height of her writing in the date and the “thank you,” yet she signs her name at a height only about half as tall?  Again, I don’t have sufficient information–and only what appears to be a copy of a copy (or copies)—but these items might bear explanation.

Why did de la Rionda surface this letter now?  Did he have reason to believe O’Mara was told of it by Dee Dee, and if so, what was he told?  Did Crump and/or de la Rionda coach Dee Dee and cause her to write the letter, and was it actually mailed to Fulton, or was it a dry run for the interviews, perhaps a crude set of preliminary talking points?  Did de la Rionda provide this, because he believed he would soon be required to produce it, and like his release of the knowledge of Dee Dee’s lies the night before the March 5th hearing, he wanted to get in front of the inevitable and embarrassing release, a release that showed, once again, he has been hiding exculpatory evidence for nearly a year?

Crump and de la Rionda have much to explain.

DE LA RIONDA’S SECOND RESPONSE:

Apparently filed April 4, 2013, de la Rionda finally provided a response to O’Mara’s motion for reimbursement (Update 24) due to de la Rionda’s obstruction of the videotaped deposition of Dee Dee on March 13, 2013.  His argument in this response is as misleading, deceptive and defensive as his argument in his initial response to O’Mara’s motion for sanctions.

He begins by asserting that videotaping witness depositions in Florida is rare and says Florida rules “…do not specifically allow for videotaping under any other circumstances,” which is misleading and inaccurate as O’Mara’s motion, which included reference to all applicable rules, made clear.  It is a basic principle of law—and of life—that what is not specifically prohibited is allowed.  This is simply another attempt by de la Rionda to avoid the substance of O’Mara’s motion and to distract the Court.

He then spent several paragraphs patting him self on the back for helping to arrange other depositions, being careful to avoid directly addressing the deposition in question.  Apparently Mr. de la Rionda believes the fact that he has, in some ways, behaved ethically and in the interests of justice (as his position requires of anyone occupying it) immunizes him from unethical behavior at odds with justice.

De la Rionda writes:

9. While discussing the scheduling of dates, location, and witnesses to be deposed in Miami, Defense counsel never mentioned a desire or need to videotape those witnesses.  During telephone conversations and email correspondence with Defense Counsel, including the days before the depositions, Defense Counsel perhaps inadvertently failed to inform the State that it intended to videotape the deposition of the witnesses in Miami.

10. On 3/6/2013, Defense Counsel’s paralegal emailed the state draft notices of the Miami witness depositions referenced in Defendant’s Motion.  The notices (similar in all respects to other, non-video notices) apparently indicated that the defense was intending to videotape the proceedings.  However, this was at no time independently mentioned and simply was not observed at the time.

Non-Evasive English Translation:  “They never told me they wanted to videotape; they must have forgotten.  OK, OK, you got me.  They did put it in writing and give it to me, but it was only their paralegal, not O’Mara, so it really doesn’t count, and besides, it looked just like stuff that didn’t talk about videotaping, so you can’t blame me for not bothering to actually read the legal notices the Defense sent me in the most important and notorious case of my life.  All that legal stuff looks alike!  Besides, if they didn’t remind me multiple times in multiple ways, how can you expect me to remember the stuff I never bothered to read?”

De la Rionda spends two paragraphs talking about meaningless arrangements having to do with scheduling depositions, arrangements having nothing whatever to do with the matter at hand.  This is clearly another transparent and inelegant attempt to distract and mislead the court from the substance of the motion.  He then writes:

13. On 3/11/2013, Defense Counsel’s paralegal emailed the state deposition notices for 3/13/2012—–3/15/2013 referenced in the Motion.  The undersigned looked at the notices to make sure the changes previously discussed had been made.  The State didn’t see that this notice had the name of the videographer on the notice.

Non-Evasive English Translation:  “That darned paralegal confused me by giving me what I wanted, and then they tricked me by putting the name of the videographer—you know, the one I never knew about in the first place because I don’t actually bother to read important legal documents?—on this document, and I read it, honest I did, but I didn’t see the videographer’s name or anything because I didn’t really read it, apparently, and in any case, it’s all O’Mara’s fault, or somebody’s fault, because I’ve done other stuff right before!”

De la Rionda has admitted that he doesn’t bother to actually read documents relating to the case, and that O’Mara did follow the state rules in giving him notification of his intent to videotape and in providing the name of the videographer.  He just admitted it in a way that might serve to mislead the judge, and perhaps, even fool her into thinking O’Mara did something wrong.  Perhaps she doesn’t read legal documents either.

Actually, de la Rionda may have fallen prey to a common failing among lawyers, particularly prosecutors: “I-don’t-bother-to-actually-read-reports-and-other-documents” disease.  Practically speaking, one DWI case (among others) is much like another, and prosecutors often traipse into court having merely glanced at a given case, if that.  They’re usually capable of winging it on the spot without substantial embarrassment.  However, combine that lack of diligence with unwarranted arrogance, and things can go quickly wrong.  When a case is more complex, those same negligent habits can have serious repercussions.

De la Rionda then recounts the events of March 13, admitting that the Court ruled against his objections to videotaping and says he understands the Court has ruled.  However, he added an interesting bit of information: the Court ordered Dee Dee’s videotape to be sealed.  De la Rionda then spends nearly two pages objecting all over again and in more detail, as if the court had never ruled, essentially extending his misleading argument that unless something is specifically allowed by law—or in this case, rules of evidence and procedure—it must somehow be magically non-specifically prohibited, quite the opposite of law and common sense.  He concludes:

Defense Counsel claims misconduct by the State and seeks financial benefit simply because the State had the audacity to lodge a perfectly legal objection to the apparently targeted and selective videotaping of witnesses’ depositions.

Defense Counsel now apparently seeks to be compensated for the time researching the issue and waiting to argue against the objection before the Court including the time spent consuming a meal.  The State’s objection was grounded in law and made in good faith.

Non-Evasive English Translation:  “OK, so my ‘perfectly legal objection’ that I made in ‘good faith’ really wasn’t grounded in law—after all, even you ruled against it—and he just wanted to videotape things to pick on poor Dee Dee!  And O’Mara wants to be compensated for having to spend time showing me the law I ignored and eating a meal, which he didn’t mention in his motion, and wasting hours because I was being a jerk and didn’t bother to actually know about the issues I should have known about, and just look at me your Honor, don’t I have an honest face?  C’mon!  You’ve been my pal so far…”

All in all, this response has all of the qualities we’ve come to expect of the prosecution in this case.  De la Rionda has, once again, lived down to expectations, indeed, surpassed them.

THE WRIT:

O’Mara, on April 04, 2013, filed a Writ of Certiorari asking the Florida District Court of Appeal for the Fifth District to overturn Judge Nelson’s decision denying a deposition for Benjamin Crump.  A writ of certiorari is simply the legal vehicle for asking a higher court to overturn the decision of a lower court.

This is an interesting step.  Lawyers generally do not, while a case is in progress, do such things.  They want to stay on the good side of the presiding judge, and few things anger most judges more than having their rulings appealed, particularly if those rulings actually are reversed.  O’Mara may have decided that he has nothing to lose by aggressively challenging Judge Nelson, which may also mean that he has come to the conclusion that she will not do justice in this case.  If this is indeed O’Mara’s decision, I suspect he may be correct.  If so, he must also expect to have a good chance of losing the case through a biased conduct of the trial on the judge’s part regardless of the evidence.  Building a strong record for an eventual appeal is a wise course of action.

I’ll not go into exhaustive detail on the writ, as it is, in most respects, identical to the original motion for a deposition of Crump denied by Judge Nelson.  O’Mara builds a careful, well supported, and compelling case.  The major elements are:

(1) Crump has information essential to the defense that cannot be obtained in any way other than a deposition.

(1A) De la Rionda knows how Dee Dee came to the attention of Crump and the Prosecution, but refuses to tell the Defense, thus a deposition with Crump is required.

(1B) ABC News kept only a short clip (5 minutes) of the Crump interview, therefore, Crump is the only person who can reveal information about many aspects of that interview.

(2) Crump deceived the Court, the public, the prosecution and the defense in his affidavit, therefore he must be deposed in order for the truth to be known.

(3) Crump is not a party to the case, therefore cannot be opposing counsel.

(4) Crump has no work product or other privileged protection, and even if he did, he has affirmatively and voluntarily waived that privilege in several significant ways.

(5) It is Crump’s insertion of himself into this case, his deceptions and manipulations, that have made it necessary to depose him, therefore, he should not be protected from the consequences of his own actions, and indeed, state law allows his deposition.

(6) Failing to depose Crump will cause irreparable damage to Zimmerman’s right to a fair trial, damage that cannot be addressed by appeals after the trial.

O’Mara’s motion also reveals a number of facts not previously widely known:

(1) Crump’s interview of Dee Dee was apparently conducted by phone.  The entire call lasted about 26 minutes, but the portion provided to the Defense was only about 14 minutes long.

(2) Judge Nelson prevented O’Mara from questioning Crump about relevant matters telling him “these are questions that can be asked at a deposition,” and “the Court’s going to make [Mr. Crump] a witness for the purpose of taking a deposition regarding this issue.  So, you can take his depo.”

(3) The Crump recording also exposes potential collusion and/or deceptions on the part of Dee Dee and/or Tracy Martin and Sybrina Fulton (Trayvon Martin’s parents):

This part of the recording also suggests that Witness 8 spoke with Tracy Martin and/or Sybrina Fulton denied in their statements to the prosecution two weeks later.

(4) O’Mara provides a section of Crump’s coaching of Dee Dee, a matter about which he lied in his affidavit, though O’Mara merely says it “contradicts” Crump’s affidavit:

Mr. Crump: OK. I wanna stop you and I want to have you say all that over again just that part there and I want you to uh, tell about how he said, how Trayvon said, ‘I thought I lost him’ and then, yeah I want you to start off right there, ‘I thought I lost him, and then he caught up,’ I want you to do it loud and slow, ok? So I can get it.  Because I remember you said Trayvon, you told Trayvon to run home and so I want you to say that—

Witness 8: No. Trayvon, will, I told Trayvon to run home because I thought he had said he lost him, so Trayvon told me (Crump interrupts)

Mr. Crump: Ok

Witness 8: he’s gonna run for it

Mr. Crump: Ok. Let me do this here.  Le me have you start over just that there ok, and say it loud and slow for me.  Ok?

Witness 8: Alright.

Mr. Crump: Ok, a one, two, three…

Witness 8: Trayvon run for it.

(5) O’Mara explained that his March 13 deposition of Dee Dee was incomplete:

Counsel for Petitioner took a partial deposition of Witness 8 on March 13, 2013 which only led to more questions and confusion as to her interaction with Mr. Crump.

As I earlier noted, it does appear that O’Mara plans a follow up deposition with Dee Dee, which, considering what has been happening, is entirely logical, but must wait for the gathering of more information, particularly that of Crump.

Though 42 pages long, the motion is readable and easily understood by the legal layman, and I recommend it to readers.  De la Rionda could learn a great deal about legal writing should he condescend to actually read this document.  The few footnotes are brief and directly relate to matters of law and fact, and are close to the items of text they support.  There are no personal attacks, and O’Mara directly and clearly deals with each and every issue in the case.

FINAL THOUGHTS:

Denver Defense attorney Jeralyn Merritt, who has been doing fine analysis on this case, has a post on O’Mara’s motion for a writ. 

Her summation:

My opinion: Crump has been burning both ends of the candle for far too long. It’s time for the court to snuff out the flame on one end. If he wants to play investigator, share his results with the public, and make grand public announcements that state officers and officials have lied, and George Zimmerman is guilty of cold-blooded murder, he shouldn’t be allowed to play hide and go seek when asked to provide information as to the reliability of his claims. He made the decision to go public with his dubious claims, which were relied on by the state in filing charges against Zimmerman. He filed an affidavit, parts of which are either mistakenly or intentionally inaccurate. Whatever privilege he might have had as to Witness 8 by virtue of his representing the Martin family had he not gone public, should be deemed waived. He has made himself a witness, and neither the attorney-client nor work-product privilege should protect him.

Judge Nelson is in over her head.  She now has to rule on the motion for sanctions with an appeal court decision on her denial of a deposition on Crump hanging over her head, and it’s her fault.  She told O’Mara she would authorize a deposition of Crump and actually prevented him from questioning Crump in favor of that promised deposition.  Then when Crump provided an affidavit that has proved to be deceptive and that O’Mara told her was not satisfactory, she pulled the deposition run out from under O’Mara without providing any reason therefore.

O’Mara’s motions have the very great advantage of embodying the truth, and of entirely embracing the law.  Judge Nelson has no legal, professional grounds to deny them.

In the case of sanctions against de la Rionda, either he has fully discharged his discovery duties or he has not.  He has been entirely truthful–to the Defense and to the Court, or he has not.  The evidence presented by O’Mara and grudgingly and misleadingly admitted by de la Rionda indicates clearly that he did not live up to his discovery duties many times and in many ways, and he did so not accidently, but willingly and knowing precisely what he was doing: depriving George Zimmerman of his right to a fair trial.  Likewise, the evidence from the Defense and de la Rionda indicates he has knowingly lied to the Court.

In the Crump motion, either Crump is opposing counsel or he is not.  Either he has some privilege under the law or he does not.  The evidence produced by O’Mara and Crump’s actions and statements make clear that he is not opposing counsel, that he has willingly waived any possible privilege.  The evidence also makes more than clear that Crump has made himself a witness, and more, a racial provocateur whose statements and agitation have led directly to Zimmerman’s arrest and prosecution.

That being the case, the only issues before Judge Nelson should be the severity of the sanctions, and ordering Crump’s deposition with all due haste.  Failing this, she demonstrates such egregious bias in favor of the prosecution and in service to The Narrative that O’Mara could probably successfully petition to have her removed from the case.  Failing this, she would be all but begging a court of appeals to overturn her should Zimmerman be found guilty.  The damage to the integrity of the Florida courts and bar would be profound and long lasting.  But worse, she would open herself to legitimate charges of racial pandering and incitement.

Matters will not be better for Judge Nelson if she is repeatedly forced by higher courts to apply the law and to do justice.

In the bizarre press conference announcing the arrest of George Zimmerman (Update 2 ), Special Prosecutor Angela Corey made a point of telling the public she intended to actually obey the law and behave ethically(?!) while simultaneously enacting an arrest based on an unethical and blatantly faulty affidavit.  From that moment, the level of unethical behavior and lack of integrity of the Special Prosecutors and of the judges involved in this case have followed suit.

Prosecuting the innocent will tend to do that.

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