Justice: When you get in a traffic accident and the other guy gets the ticket.
On the eve of the beginning of the George Zimmerman trial, it may be worthwhile to consider how to evaluate what has been happening, and what will likely happen. In analyzing the events yet to come–and the George Zimmerman case will not be the end, regardless of the outcome–consider that all of this is essentially a battle between “social justice” and justice.
Justice may be considered to be an outcome of a criminal case in consonance with the law and the rule of law. It embodies the ethical and honorable actions of every entity in the criminal justice process. If the police make false arrests or commit perjury, justice is seriously damaged or impossible, and respect for the rule of law diminishes. If prosecutors file charges without sufficient cause, if they overcharge in the hope of extorting a plea to a lower charge, if they commit perjury or do not live up to their obligation to provide discovery, if they collude with other attorneys with financial interests in their case, the same consequences–for individuals and society as a whole–occur. If judges do not do their jobs and act as a curb on the unethical and overzealous actions of the police and prosecutors. If they take sides, or legislate from the bench, the same consequences–and worse–occur.
Justice is fragile, yet absolutely necessary. Its correct and consistent application consonant with the rule of law is the glue that holds together our representative republic. If citizens can’t believe that the rule of law holds, anarchy become possible, even likely.
Social justice, on the other hand, is nothing more than the seizure of financial and/or political spoils, usually to the advantage of specific, favored victim groups and the politicians that pander to them. In most cases, it requires ignoring the Constitution, the law and the rule of law, and usually requires forcing others–or the taxpayers–to subsidize something the victim group wants.
Consider the statue under which Zimmerman is charged, as I noted in Update 2:
The Florida Murder statue applicable to the Martin case—murder in the second degree—reads:
782.04 Murder.—
(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
A brief FindLaw commentary on the statute is available here.
This statute, like most, contains various elements. In this case three. Because the linking word is “and” rather than “or,” all three elements must be proved before an arrest warrant is issued. And there can certainly be no conviction unless all three are proved beyond a reasonable doubt. The elements:
(1) A human being must have been unlawfully killed, and;
(2) by means of an act imminently dangerous to another, and;
(3) that act must reveal evidence of a depraved mind regardless of human life (but without premeditation to cause the death of any particular person).
Trayvon Martin was killed, but if Zimmerman acted in self-defense, and the Sanford police and the local prosecutor concluded that he did, no arrest should have ever taken place. Unless the special prosecutor can prove that Zimmerman did not act in self-defense, and their investigator has admitted they have no evidence to refute Zimmerman’s self-defense claim, there can be no conviction–in a court where justice holds sway.
Unless the prosecution can proved Zimmerman did not act in self-defense, the second and third elements are moot–unless social justice is the goal.
How it can be proved that Zimmerman demonstrated evidence of a depraved mind regardless of human life when he called the police and remained on the line with them until they both believed that Martin was long gone goes to the heart of the social justice v. justice issue.
Again, all of the evidence indicates that Zimmerman wanted nothing more than to keep Martin in sight for the responding police. All of the evidence indicates that he was attacked by Martin, and that just as Zimmerman claimed, he was punched in the nose, knocked to the ground, and his head was repeatedly smashed into a concrete sidewalk. The affidavit, supposedly written by the two special prosecutor’s investigators with the supervision of Bernie de la Rionda either ignores these facts or misstates them. It does not provide probable cause to support a single element, yet a judge issued an arrest warrant based on that affidavit. No judge should have ever authorized a warrant for such a patently defective, incomplete and deceptive affidavit. In fact, no judge should have allowed this case to progress to trial based on that defective affidavit. The case should have been dismissed–with prejudice–long ago.
During the trial, Mark O’Mara can be expected to move for dismissal of the case several times. He’ll probably do so when the state’s case is finished, but Judge Nelson will almost certainly refuse. He’ll do so when his case is done, but Judge Nelson will almost certainly refuse.
In fact, the very fact that this case has not been thrown out is compelling evidence that justice is not involved, but social justice is. Social justice relies on the rule of the mob, the support of the media, and the collusion of politicians. It also requires an aggrieved and aroused victim group. In this case, all are actively involved. The New Black Panthers, a racist group, has placed a bounty on Zimmerman; the President and the First Lady have inveighed on behalf of Martin and social justice; the media’s collusion–and their exposed lies–are well known; and of course, the collusion of politicians such as Florida Governor Rick Scott, AG Pam Bondi, AG Eric Holder, and a wide variety of other politicians, local and federal, is well-documented. Threats of mob violence hang heavy over the trial. Prospective jurors expressed the fear that a not guilty verdict would endanger their lives, and the disruption of tourism that racially charged riots would cause all but ensures that justice will be ignored.
A Little-Remarked Upon Motion:
On or about June 21, Donald West filed a response to a motion by the state to limit “res geste” statements by Zimmerman in this case. Such statements fall under exceptions to the hearsay rule. Generally, they fall under the “excited or spontaneous utterance” exception. The must be made soon after the event, they must relate directly to the event, and they must not be premeditated (a legal dictionary definition is available here).
This motion brings up a significant factor in analyzing Judge Nelson’s decisions. Judges can err in two primary ways: interpreting the law and applying the law. Some laws and precedents are so well known, such fundamental building blocks of the law, that any judge that fails to understand them cannot be forgiven such error. In this case, the overturning of Judge Nelson’s decision refusing to allow the deposition of Benjamin Crump is an example. The law cited by the defense was well settled and not at all difficult to understand, but Nelson decided to ignore it. This left the appeals court no alternative but to reverse her decision. How then did she get that wrong? Is she so poorly educated in the law, so poorly informed that she just didn’t know the law? Is she unable to read the citations provided by the defense?
West’s response to the motion is nothing more than a reminder that specific and long established exceptions to the hearsay rule exist and that Judge Nelson may not issue a generic order blocking all such statements prior to trial. Such an order would add yet another fact of reversible error to a very long list she has already begun.
The prosecution doubtless made the motion as a means of compelling George Zimmerman to testify, something the defense would prefer to avoid. If statements made by Zimmerman to others–if they’re wrongly categorized as inadmissible hearsay–Zimmerman would surely be forced to testify, exposing himself to all manner of prosecution dirty tricks.
West listed this example:
Witness 13 and his wife heard a commotion in the back of their townhome. They heard yelling and then heard a shot. Witness 13 grabbed a flashlight and went outside to wee what had happened. Within seconds of the shooting, W13 observed Mr. Zimmerman who was staggering, bleeding and breathing hard. The witness observed blood on Mr. Zimmerman’s face and the back of his head consistent with someone having been injured in a fight. Mr. Zimmerman asked W13 if he was bleeding? Witness 13 said ‘yes” and W13 asked Mr. Zimmerman what had happened? Mr. Zimmerman told W13 that the other person was ‘beating me up’ and he shot him.
Clearly, the prosecution wishes the judge to exclude all such admissable utterances. This would have the effect of forcing Zimmerman to the stand to provide the full context of the encounter to support his self-defense claim.
Various media accounts suggest that Nelson granted the prosecution’s motion. If she upholds it, that would clearly be reversible error. Any judge seeking justice would know that a blanket order prohibiting any and all hearsay would be grossly improper. I suspect we’re at the point where Judge Nelson will be forced to consider such issues on a point by point basis during the trial, which is unusual, to say the least. Should she refuse to allow statements that clearly are admissible, each and every instance of such refusal would be reversible error.
The Expert Testimony Order
On June 22, Judge Nelson issued a 12-page order excluding the testimony of Thomas Owen and Dr. Reich (my reporting on their testimony is available here and here). I’ll save readers the trouble of reading Judge Nelson’s legal prose unless they feel the compulsion.
What is extraordinary about this order is its length. The principle involved is the Frye test, which is actually very simple. Nelson produced this explanation:
In utilizing the Frye test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand… The general acceptance under the Frye test must be established by a preponderance of the evidence.
In other words, is the science used to obtain a result reliable and recognized as accepted by the scientific community. This is not a difficult test to apply, nor is it an unusual or rarely used facet of the law. Judge Nelson could have easily done an acceptable order with two or three pages, merely pointing out that the methods of Owen and Reich were not reliable and recognized as scientifically acceptable, noted the testimony of Dr. Nakasone, Dr. French, Dr. Doddington and Dr. Wayman to that effect, and be done. Her order denying the deposition of Crump amounted to nothing, yet this one ran 12 unnecessarily long pages. Why?
Analysis: The behavior and actions of the judges in this case and of the prosecution can be fully understood only in light of their pursuit of social justice, which is embodied by The Narrative. The Narrative is, in fact, the prosecution’s case. It is their opening statement, their case in chief, their cross-examination strategy, and their closing statement. Therefore, it is wholly non-factual, relies on conjecture and deception for proof, assumes as fact racial motivations on the part of Zimmerman where non existed, and requires the prosecution to lie, dissemble, conceal exculpatory evidence, and otherwise deny justice. Because the pursuit of social justice always embodies a sort of pseudo-religious fervor that can brook no doubt or opposition, anyone holding another view–in this case, the facts and the law–must be evil and racist. Any true believer challenged about their social justice inspired beliefs is unable to calmly and logically discuss them; they are always driven to anger and must attack. Corey and De la Rionda’s behavior in this case are textbook examples.
To be sure, one can attribute some of the prosecution’s behavior to other factors such as arrogance, spite and even incompetence, but what about the judges? Judge Lester, the first judge in this case, was removed by the appeals court due to his obvious anti-Zimmerman bias (see Update 14 for the reasons). He was replaced by Judge Nelson who has made no directly prejudicial statements about Zimmerman, but whose rulings, taken as a whole, have no less improper and damaging effects on his ability to obtain a fair trial.
As I previously noted, Judge Nelson should have dismissed this case immediately based on the grossly insufficient and unethical affidavit alone. Her rulings may be reasonably read to indicate the desire to protect the narrative and those trying to prop it up, such as Cory, de la Rionda and Crump. Remember that social justice is always motivated by and inextricably linked with politics, and the political dimensions of this case run deep.
Is it possible that both judges in this case were merely incompetent? That they knew so little about the law and the kind of demeanor any jurist must display that they made fundamental errors that caused them to be thrown off the case and reversed? Or is it more likely that they were motivated not by law, not by the rule of law, not in the pursuit of justice, but in the pursuit of social justice?
Final Thoughts:
That every issue of the admissibility of evidence and trial expectations has not been settled before the trial begins is unusual indeed. Andrew Braca at Legal Insurrection, is writing on the Zimmerman Case. I recommend his writings in general, and this one in particular. No judge wants to enter into a contentious, highly charged trial with any of these issues unsettled, yet that’s the status quo. This makes sense only if social justice is the goal.
If Judge Nelson refuses to allow Zimmerman’s statements, which are clearly admissible under the exceptions to hearsay, that can only be a political, rather than a legal, decision. It would have the very direct effect of forcing Zimmerman to testify, a violation of the Constitution, and another point of law about which there can be no disagreement or mistake in application: no defendant may be compelled to testify, nor can any negative inference be made as a result lf their decision not to testify.
I’ve little doubt that Judge Nelson will do whatever is necessary to see that this case goes to the jury, despite having more than sufficient cover under the law to have dismissed it long ago. Such a decision is inherently political. Her ridiculously lengthy opinion on Owen and Reich suggests political rather than legal sensibilities. No doubt she is aware that she is being watched by the Court of Appeals, but because that decision stands in opposition to the narrative, she owes a much greater burden of proof than if she was merely applying well understood and long settled law. There was no interpretation to do. It is one thing to be concerned about seeing that justice is done. It is quite another to try to appease the forces of social justice.
Remember that Judge Nelson is allowing the Scheme Team and the Martin parents to hold press opportunities in the courtroom. I’ve never seen anything like this. I’ve never known any judge to allow such a thing, as it can only directly imply that the scales of justice are rigged.
Expect the prosecution to support the narrative. Expect the defense to argue the facts and the law. Expect Judge Nelson to support the narrative, but to strain mightily to avoid doing so too obviously.
In a court where the judge was actually trying to do justice, I would be able to venture an opinion on the outcome. In this case, there is no way to know. Yes, the facts and the law are fully on the side of the defense, but if that truly mattered, this case would never have been filed in the first place. Much will depend on Judge Nelson and to what degree she does or does not have a fit of conscience that causes her to scamper to the side of justice, or social justice.
jello333 said:
I really believe the DCA is doing more than just “watching” Nelson. I think that as of the end of the hearing on Friday, they are ORDERING HER to do her job. During the last half hour of that hearing, she repeatedly told Don West she wasn’t gonna issue the Frye ruling before Monday. She was going home, and work on it over the weekend, NOT gonna fax or email it from home…. and would give it to them Monday morning just before opening statements. She ended with “I’ll see you all Monday”, and walked out. But then, what do you know! The next morning we see a long, well-written ruling… a CORRECT ruling.
What happened?
In my opinion, what happened was that the DCA was watching. They saw her arguments with West, saw her walk out of the courtroom as if she had just been “victorious” in some way…. and got on the phone. When she got back to her chambers there was a call waiting for her. She was told in no uncertain terms that she WOULD get that ruling finished, that the ruling would be CORRECT, and that they didn’t wanna have to tell her again how to DO HER JOB.
Of course this is all supposition on my part. What might give a good indication I’m right is if she makes the correct ruling on the “hearsay exception” statements. If she does that, and if from now on she acts like a REAL judge, then I think it’ll be pretty clear that the DCA gave her a stern talking-to. And if so, the chances of the State getting a conviction in this case will have gone from very, very slim….. to ZERO.
LittleLaughter said:
IDK Jello- What does Nelson fear more, The DCA slapping her wrist? Or the full weight of the BGI and the heavy politics involved? I am inclined to believe the latter, since after the DCA reversing her ruling on Crump, not much changed with her at all. The full weight of the corrupt is far more frightening to her than the DCA’s hand slapping. For what it’s worth, Jello, I usually agree with you on every aspect. And even though I’m a bit more skeptic of Nelson’s fear of the DCA on this point (I don’t necessarily disagree with your supposition), I DO hope you are right!!! :-)
jello333 said:
;) Yeah, if it was just a little wrist slap (another reversal, etc), I don’t think she’d be too concerned. But I think (and Sundance implied awhile back) it goes beyond that. Not sure what kind of pull the DCA has, but apparently it’s considerable. Could be they could impact Nelson’s entire FUTURE. “To traffic court you go!” Hmm….
Joel said:
I think Judge Nelson ruled correctly in order to keep her new job in Civil Court. This is her last case in Criminal Court. She goes to Civil Court. The DCA could have told her that the next seat might not be available if she keeps stupidities like Owen and Reich.
Call me crazy, but with her last ruling, Bernie has got zip for evidence. With no evidence and only a patently false narrative, the prosecution should drop the case. If Bernie doesn’t and Nelson over rules the defenses opening motion for dismissal then she will lose her new position. I don’t think she will.
I think this Monday morning will be a shocker to most people and Judge Nelson will dismiss for cause and with prejudice.. Another way to put it. This won’t go to the jury.
jordan2222 said:
Hello, Jello. How are you, my friend? i see we are still on the same team.
jello333 said:
Jordan!! I asked about you a couple days ago. Thought you might be sitting in on the proceedings in Sanford. ;)
jordan2222 said:
ackbars is h there and is reporting from the court room for us over at Nettles place.
Chip Bennett said:
Nelson’s rulings are almost schizophrenic, but I don’t think 5DCA is unilaterally intervening in the trial court proceedings. And I would be disappointed if they were doing so. As I’ve said all along: someone in the entire freaking state of Florida needs to act under the law and constitution, and it is in everyone’s best interests if that someone includes at least the appellate court.
Aussie said:
Jello I hope they are watching because Tracy Martin should have been thrown out of that courtroom after his attempt at intimidation. Ditto for Sybrina and her attempt at intimidation.
LittleLaughter said:
As always, Mike- You do a fantastic job! Very articulate and exceptionally well written. Each time I read your posts pertaining to the Zimmerman case, I find myself wishing with ferver that the defense attorney’s are also reading. I don’t know how any thinking individual could read your articles and remain willfully ignorant. I enjoy reading all of your articles, not just the Zimmerman threads. You are a well rounded, intellectual character with perfect sense of timing for humor!
coreshift said:
I think GZ’s defense team knows the score, but I certainly agree that Mike does a great job.
Aussie said:
Reblogged this on A world at war.
unitron said:
If the ruling against Owen and Reich was much longer than necessary, what else was in there that wasn’t needed?
boricuafudd said:
Thanks Mike, as always you analysis is spot on. To me when considering the social justice aspect as you mention has been, have they really understood the precedent that they are setting? Have they really understood the magnitude of the decision and their consequences?
In their quest for social justice, they are sending at least 2 distinct, powerful and dangerous messages. A; the law can be subverted by any grievance group if it has enough support, mob rule. B; beware if you try to help your community, as they can turn on you on a dime. Trying to be a good Samaritan can turn you into a pariah.
nivico said:
“A; the law can be subverted by any grievance group if it has enough support, mob rule.”
Every time the Scheme Team reminds us how the Change.org petition received over two million signatures, I smh and think to myself “This isn’t American Idol…”
boricuafudd said:
Funny you mention that, I was having a discussion where I said to a friend that the way we were going, I could see a day where the President would be elected after a few shows had narrowed the field by electronic vote a la American Idol.
We laughed about it, but if you consider how many decisions the government performs following polls, it is a scary scenario, and I know that GZ is not laughing, either.
Aussie said:
Bingo, you got it, and yes even in my country I have been thinking about the consequences of giving in to the BGI.
It is very bad to give these children their own way all of the time.
boricuafudd said:
Dangerous and in crime ridden areas downright stupid. The police are begging for help, the new Chief in Sanford is even requesting volunteers for NW, ironic isn’t.
But if they are going to prosecute the members who are putting themselves on the line to help, how many volunteers would they keep.
Aussie said:
Are they serious? A guy who volunteers is on a murder 2 charge and they are looking for NW volunteers? In their dreams, unless they clean up the BGI
boricuafudd said:
I hate to say it but maybe they want the right volunteers, of the right race.
Aussie said:
So that they can just shut their eyes and let the burglaries continue?
boricuafudd said:
Or so that they would know who to intimidate if caught.
Aussie said:
good response :)
JB from SoCal said:
Hi boricuafudd,
Did you get to hear the voice of Juror B-29 yet? She is the lady who fled Chicago with her husband and kids to Sanford. She was initially described as “Black,” then “Black Hispanic,” and now just “Hispanic.”
Someone @ annettek, after listening to her speak, speculated that she was PR. You and I have both known dark-skinned Latinos who would “pass” for Black here in the USA, that is until you strike up a conversation with them and get a “No hablo ingles.” As with Mexicans from each coast, east and west, where the slave ships stopped is where this is most common. I saw it a lot in Puerto Rico and elsewhere in the Caribe, and understood it to be a natural occurrence.
What is your take? Did she sound Boricua to you?
Best regards to you, amigo.
JB
boricuafudd said:
Given the large Puerto Rican population in Chicago and her accent I would say that is a good safe bet. Combine that with her moving down to the greater Orlando area which also has a high numbers of islanders I think she is right.
Angel King said:
Very well spoken and undeniably true.
everlastingphelps said:
When the subject of different kinds of justice comes up, I always think of the Afterword to David Drake’s Justice, which was part of the Northworld Trilogy based on the Viking Edda:
Justice has already been carried out. The only question now is how much Zimmerman will be victimized after the fact.
RuleofOrder said:
Justice is then last man standing in situations like these.
rspung said:
nelson ruled correctly first thing this morning that Zimmerman’s hearsay testimony can come in. another loss for the prosecution. also, Zimmerman’s parents were barred from the courtroom because they are on the witness list. does that mean trayvon’s parents will not testify?
Allyn said:
Nope, it means that they can stay in the court despite being on the witness list because the law specifies that the parents of a victim have the right to be in there. Nelson would not even inquire of Bernie whether he intended to call the Zimmerman’s, allowing him to name them as prospective witnesses and keep them out. Good news is Crump can’t come in either.
Han Ng said:
Mr. McDaniel,
I think you are mistaken about the effect of an arrest warrant affidavit lacking PC. Although I could find no Florida case law on point (but I didn’t search for very long), I think that every state that has considered the issue has held that an illegal arrest does not divest the court of jurisdiction over the defendant. Now, whether the failure to include exculpatory information in the affidavit (a Due Process violation) could be sanctioned by dismissal of the case is another story, but just because an arrest is illegal doesn’t mean that a case must be dismissed–merely that any evidence obtained as a result of the arrest would be suppressed. The stage where the case could have been dismissed for want of PC would have been the preliminary hearing, but Zimmerman waived it, and having waived it, the judge cannot sua sponte just dismiss the case.
Similarly, I am not sure that if the judge denies a motion for judgment of acquittal at halftime or at the conclusion of the defense case, it would be because of the nefarious reasons you suggest. A judge ruling on a MJOA must take evidence in the light most favorable to the prosecution and draw all reasonable inferences therefrom and only if no reasonable finder of fact could find the establishment of the elements beyond a reasonable doubt does the judge grant the motion. Thus, in order to preserve the right of the jury to be the finder of fact, any questions of credibility, any conflicts in testimony or other evidence, and any ambiguities in evidence must be resolved in favor of the prosecution for purposes of the MJOA (obviously, the jury is not bound by this but must afford the defendant the presumption of innocence). It seems to me that this is sort of parallel to the defendant’s right to have the jury instructed on an affirmative defense, no matter how improbable, if he presents but a scintilla of evidence in support of said affirmative defense. Unless the prosecutor presents no evidence whatsoever regarding the “depraved mind” element (and this is what is at issue since Zimmerman will be essentially confessing the “death” element and the “imminently dangerous act” element as part of his affirmative defense of self-defense), for example, by forgetting to play the part of the 911 call where Zimmerman voices his frustration that the “fuckers keep getting away [with burglary],” I would expect that any judge would deny a MJOA.
Additionally, I am not sure that your taking the judge to task for writing a 12-page order on the proposed expert testimony is fair. The simpler explanation, and in my opinion most likely explanation, is that the judge is simply trying to make a clear record for the inevitable appeal.
I am also not surprised that a judge would refuse to make a pre-trial ruling on what amounts to no more than a hearsay objection. The objection simply is not ripe until the statement is elicited. In any event, the refusal to rule in advance actually hurts the prosecution more than the defense because even if the court sustains the objection when the defense attempts to elicit Zimmerman’s statements on scene, the jury will likely see such an objection as an attempt by the prosecutor to hide the ball–which is never good when he has the burden of proof.
There certainly is a very questionable exercise of prosecutorial discretion in the course of this case, but I think that at least with regard to these points, you are off base. From what I can tell, the judge in this case is not putting her thumb on the scales of justice. Heck, she even sustained two of the defense’s Batson challenges to the prosecutions exercise of pre-emptories–essentially calling the prosecutors racists (or sexists, or both). I have read your posts regarding this debacle of a case, but have to respectfully suggest that perhaps you are letting your disagreement with the judge’s prior rulings prejudice your analysis of the rulings you have described in this post.
jello333 said:
No bias on Nelson’s part? Ok, I assume you know about all the foot-dragging, the hiding of (possibly tampering with) evidence, the outright LYING on the part of Bernie… right? Well then, how can you explain Nelson’s refusal — 4 times, I believe — to grant a continuance as requested by the Defense? Remember part of the reason a continuance is needed is because of Crump’s refusal to be deposed…. and Nelson’s aiding of him in that regard.
How does this not show clear bias on the part of Nelson?
Han Ng said:
Jello333-
Thanks for your response. Regarding the denial of a continuance, the judge had previously denied the defense’s request for a deposition of Crump. Since the reason for a continuance would be a deposition that would not happen, there would not be good grounds for a continuance. The opinion of the appellate court did was not issued until 3 June (let us assume that the mandate was issued with the opinion); and the sort of appeal sought by the defense on this issue was not the kind that stays the proceedings. Did the defense move for a continuance after the appellate court’s ruling was handed down, or were they able to get what the appellate court predict to be a “relatively short and straightforward” deposition completed in time for trial?
It is one thing to disagree with the rulings of a court. It is not uncommon for judges to get things wrong (which is why there is an appellate process). A judge who is bad on the law may very well be the crabgrass in the lawn of the litigator’s life, but it is not bias to deny a continuance predicated on an event that the judge has ruled will not occur because a motion to continue for such a reason would not be supported by good cause. This is why it would be interesting to know if the defense requested a continuance to get the deposition done after the appellate court had reversed the trial court’s decision. If the defense had requested a continuance to get the now-ordered deposition completed with but a week before the start of trial and such motion was denied, then indeed one could make a reasonable inference that the judge was deliberately frustrating the defense investigation.
Also, as I wrote in my earlier comment, this judge denied the prosecution’s calling of the voice recognition experts and sustained two of the defense’s Batson challenges. This second point cannot be stressed enough. Making a Batson challenge to a prosecutor’s peremptory is accusing the prosecutor of racism. By sustaining the challenge, the judge is basically agreeing that the prosecutor is a racist. This seems to me to be the very opposite of bias in favor of the prosecution. What we have here are some rulings favoring the prosecution and some rulings favoring the defense. Even if the judge is wrong on every single one of them, this is not bias–it is simply bad judging. Perhaps if every single ruling by the judge was both erroneous and in favor of one side, then perhaps accusing the judge of bias might have some merit, but based upon what I have read on this blog alone, I see scant evidence of bias on the part of the judge, as opposed to erroneous rulings (or more accurately, an erroneous ruling, along with other rulings that may or may not be erroneous–obviously not so bad that the defense filed an appeal) with which Mr. McDaniel vehemently disagrees.
jello333 said:
“This is why it would be interesting to know if the defense requested a continuance to get the deposition done after the appellate court had reversed the trial court’s decision. If the defense had requested a continuance to get the now-ordered deposition completed with but a week before the start of trial and such motion was denied, then indeed one could make a reasonable inference that the judge was deliberately frustrating the defense investigation.”
Here ya go. June 8th. Believe me, we’ve followed this VERY closely. There is no doubt about this “judge”:
Click to access June%208%20Defendant’s%20Third%20Motion%20for%20Continuance.pdf
jello333 said:
By the way, that motion contains a bunch of reasons for a continuance. The one re. Crump is #14.
Han Ng said:
The motion does set forth reasonable grounds for a continuance. The judge is certainly risking the entire case coming back in the event of a conviction on ineffective assistance of counsel grounds.
Mike McDaniel said:
Dear Han Ng:
Thanks for your comments and welcome to SMM! If the affidavit has sufficient PC, by all means, point it out. However, you won’t be able to use any of the text of the affidavit to do that; it’s just not there.
I have not listed all of the grounds for reversal because I’ve covered them in such profusion in a variety of articles for some months now. Denying the most recent and substantive request for a continuance, many of the circumstances for which were created by Judge Nelson’s blatantly incorrect denial of a deposition of Crump, is in itself more than sufficient grounds.
And of course, many defense attorneys make multiple motions for acquittal for no reason other than building an appeal record. Judges deny them for the same reason. However in this case, there was no probable cause for an arrest in the first case, and the prosecution’s case has not improved.
Simply because the judge has not denied the defense everything is not, by itself, evidence of even-handedness.
I’ve little doubt that Judge Nelson is counting on people to give her substantial deference in her rulings. Considering them all, and her demeanor in the courtroom, I don’t feel she’s due that deference.
Thanks again!
Han Ng said:
I am not saying that the arrest warrant affidavit contains PC, but rather that the lack of PC in an arrest warrant affidavit is not a legal reason to dismiss a case (because an illegal arrest does not divest a court of personal jurisdiction over a defendant).
I will not re-hash what I have written above about how I am not seeing the bias on the part of the judge based upon what you have written on this blog, other than to again note that a judge who is willing to call the prosecutor a racist by sustaining a Batson challenge to one of his peremptories is probably not in the tank for the prosecution. I think this is something where we will just disagree.
I certainly agree with your read of the prosecution and its investigators in this case.
floridagatorfan said:
“Remember that Judge Nelson is allowing the Scheme Team and the Martin parents to hold press opportunities in the courtroom. I’ve never seen anything like this. I’ve never known any judge to allow such a thing, as it can only directly imply that the scales of justice are rigged.”
Is this, in your opinion, mitigated in any way by the fact that MOM has given at least one (I’ve only personally seen one, there may have been others) presser of his own from inside the courtroom?
I’m not sure either of them should be doing that, to be honest, but does goose-gander apply?
SlingTrebuchet said:
ron loper said:
Mike, I’m a reader and have never commented here. Anxiously awaiting new commentary now that the trial has begun in earnest. Thanks!
Mike McDaniel said:
Dear ron loper:
Welcome to SMM! More commentary coming tomorrow evening or Saturday at the latest, depending on the materials I’m able to gather.
Allyn said:
Great day for the Defense. The physicians assistant, while not going overboard, agreed with George’s account.