In Update 22, “The Incredible Exploding Dee Dee,” I suggested that when Dee Dee was deposed by George Zimmerman’s attorney, Mark O’Mara, the information she provided had the potential to be even more harmful to the prosecution and to the members of the Scheme Team. The first part of the deposition was completed on Wednesday, March 13, and additional time was reportedly scheduled for Friday, March 22 (Depositions of Tracy Martin and three others were held on March 14, and Sybrina and Jahvaris Fulton were deposed on March 15). This is, in itself, unusual. A full day is usually more than enough for such matters. That another day is required suggests strongly that far more relevant evidence is being unearthed. It is likely this information will be destructive not only to the prosecutor’s all but nonexistent case, but to the prosecutors, the Scheme Team–particularly Benjamin Crump–and others involved with them.
In a related development, the Orlando Sentinel reports:
The judge in the George Zimmerman case this week signed orders, requiring the Florida Department of Law Enforcement to release to defense attorneys the biographical profiles agents did on Trayvon Martin and key witnesses in the case, including his girlfriend.
It’s a written version of an order she made from the bench earlier this month.
The information includes some criminal background information and other pieces of information likely to be useful to attorneys wanting to challenge the character of a witness.
In a February 22, 2013 hearing, O’Mara petitioned the court to order a deposition of Crump. O’Mara sought to discover, among other information, why there were multiple interruptions in the audiotaped interview Crump conducted of Dee Dee on March 19, 2012. That interview, and Crump’s subsequent, hyperbolic statements regarding its content, were instrumental in securing Zimmerman’s eventual arrest. Crump resisted that deposition, filing a sworn affidavit with the court in which he claimed that any interruptions were entirely innocent and no matters of substance were discussed while the recorder was off.
Apparently partially based on a non-skeptical reading of Crump’s deposition, on March 4, Judge Debra Nelson denied O’Mara’s motion to depose Crump, primarily citing the work product privilege (opposing attorneys are generally not required to submit to depositions, but this privilege is not absolute). And this is where matters have suddenly become very, very interesting, and may, once again, blow up in the prosecution’s face just as Vesuvius blew up on Pompeii and Herculaneum in 79 AD. And once again, Dee Dee–the gift to the defense that just keeps on giving–is involved.
THE NATURE OF PRE-TRIAL MOTIONS:
Pre-trial motions are usually rather dry and uninteresting matters of routine business, matters that must, for the purpose of creating and maintaining a record in case of appeal (and for other reasons) be put on paper rather than discussed informally in person, by phone, or by e-mail by the participants. As you’ll see in this article, the motions in this case are quickly becoming among the most interesting parts of the case as they potentially give significant clues into not only trial strategy, but about the utter lack of ethics–and the almost unbelievable lack of evidence–possessed by the prosecution.
On March 15, two days after O’Mara initially deposed Dee Dee, he filed a motion asking Judge Nelson to reconsider her decision of March 4 (a PDF copy of that motion and all related documents, is available here). In that motion, O’Mara asserted:
There has been a significant amount of newly discovered evidence in this cause, making the deposition of Mr. Crump even more necessary and relevant than was perceived at the time of the hearing.
It is highly likely much of this “newly discovered evidence” was obtained that very day (March 13) from Dee Dee.
We now know–the prosecution has admitted it–that Dee Dee perjured herself in her April 2, 2012 interview conducted by assistant special prosecutor Bernie de la Rionda. In his motion, O’Mara notes that in her March 19, 2012 statement with Mr. Crump, Dee Dee–identified as “Witness 8”–told Crump that she was so upset at Martin’s death, she had to be hospitalized and could not attend Martin’s funeral.
She repeated that statement on April 2 to de la Rionda. O’Mara continued:
5. Defense counsel initially sought information regarding this hospitalization from the State by email on August 23, 2012, but received no response…
6. On September 19, 2012, in a signed letter delivered via U.S. Mail, defense counsel again requested the State to confidentially provide records regarding Witness 8’s hospital visit if the State had them, but again received no response…
7. Based upon the need to learn the truth behind Witness 8’s hospital visit, and with other concerns for the veracity of this witness, undersigned counsel filed a “Motion for Issuance of a Subpoena… requesting Witness 8’s hospital records in an effort to document this hospitalization.
8. This matter was then set for hearing before this Court on March 5, 2013… On March 4, 2013 in the evening hours, undersigned counsel received a telephone call from Assistant State Attorney John Guy, who explained that there would be no need to move forward with the subpoena, as no hospitalization records existed for Witness 8, in that she misrepresented that she was in the hospital, and, in effect, lied to those various above-referenced people, particularly in her under oath statement to Assistant State Attorney Bernie de la Rionda….
O’Mara reiterated Crump’s statement about Dee Dee’s supposed hospitalization in his deposition, and added, with admirable restraint:
10. Now that Witness 8’s credibility is at issue because of this contradictory and possibly perjurious testimony, deposing Mr. Crump is even more necessary and relevant for further determination of additional misrepresentations or lies, to document further bases for impeachment of Witness 8, and other necessary matters.
O’Mara noted that Crump, in his deposition, said his recorder was turned off, but he didn’t discuss anything “substantive” with Dee Dee and only used that time to “collect his thoughts and formulate questions.” “O’Mara provided Crump’s words:
To the best of my knowledge, while the Recording does not include the Preliminary Inquiry it contains very substantive statement that Witness 8 ever made to me in regard to her conversations with Trayvon on February 26, 2012, what she heard or might have overhead during the course of those conversations, and what she perceived or might have been in a position to perceive as a result of those conversations, as well as every other substantive statement that Witness 8 ever made to me that could have a tendency to prove or disprove a material fact potentially at issue in the Litigation or the instant case (including, but not limited to, those relating to the offense with which Defendant has been charged, the potentially lesser included offense of manslaughter, Defendant’s claim of self defense, justifiable homicide, excusable homicide, Florida’s Stand Your Ground Law and a wrongful death claim). To the extent Witness 8 may have made any other statements–whether or not arguably relevant, legally discoverable or otherwise–that are not contained within the recording but that I was potentially in a position to hear or understand during the Interview, apart from what was said during the Preliminary Inquiry, I have no recollection as to the substance or content of any such statements.
Translation Into Colloquial English: “If I heard anything Dee Dee said during the multiple times when the tape was turned off, I don’t remember a single word. I don’t remember I word I said. I don’t remember a word she said, or anyone said. I’m just like Sgt. Schultz: I know nothiiiiing, nothing!”
Remember that Mr. Crump is making this statement in a sworn affidavit. If he lies, it’s perjury. Is he lying? Why would O’Mara think this? Could Dee Dee have told him Crump is lying, or is there other evidence to that effect?
In the motion, O’Mara writes he has obtained an ABC News audio recording of Crump’s interview of Dee Dee. Matt Guman of ABC News and an assistant were with Crump when he interviewed Dee Dee. Regular readers may recall that in Update 13 (July, 05, 2012) I wrote of Det. Christopher Serino, the lead detective on the Martin case, who had just been “reassigned” to patrol on the midnight shift in Sanford, FL. In addition, I noted that Mr. Gutman, who revealed that Det. Serino had been leaking information to him, information Gutman used to fake a video that suggested that Zimmerman had not been injured in the attack by Martin. ABC’s false reporting was quickly exposed and Gutman was hastily sent to the opposite side of the world as a foreign correspondent. It appears that ABC, if not capable of shame, is at least capable of recognizing–and fearing–the potential legal liability to which Gutman so foolishly exposed the network. O’Mara writes:
13. The recording released by ABC News contains a substantive conversation between Mr. Crump and Witness 8 that Mr. Crump did not record and which, according to his sworn affidavit, never took place. Further, during this segment, Mr. Crump is focusing Witness 8’s attention on specific aspects of her conversation with Mr. Martin, and asking her to emphasize certain parts of her testimony when he turns on his recording device. Indeed, near the end of the segment, Mr. Crump is heard to ‘count down’ to the point where he wants Witness 8 to specifically address an issue that he has decided is important.
Translation Into Colloquial English II: Crump lied. We have it on tape and there are at least two direct witnesses. Did we mention that Crump lied? Under oath? To this Court? We thought so.
O’Mara again shows admirable restraint and the patience of a saint:
14 This recording, previously unknown to the parties, contradicts the statements made by Mr. Crump in his affidavit filed in support of his objection to the Defendant’s motion to authorize his deposition. It is now clear that the affidavit filed by Mr. Crump is not only incomplete, but it is also inaccurate. This further supports the importance of and the need to depose Mr. Crump regarding his conversations recorded and unrecorded with Witness 8. Mr. Crump should be required to answer questions regarding his interview.
Do you see, gentle readers, what I mean about restraint and patience? It gets better:
15. In addition, while Mr. Crump is arguing to this Court that he should not be deposed regarding the event surrounding the audiotaping of Witness 8, his own actions, in fact, caused the greater need for deposition. Mr. Crump, an attorney versed in rules of evidence and aware of the need to maintain the sanctity of testimony, took on the responsibility of securing the first statement of the state’s most significant witness, and did it in such a way that he decided not to have law enforcement present or available. In making that decision, he avoided some of the traditional safeguards that would have been in place had this been done under law enforcement authority.
Here O’Mara makes an important point. Law Enforcement agencies have written policies and procedures relating to interviews. When recordings are made, they are done strictly to protocol, and there are no breaks or lapses in recording. The police–and they do make mistakes–know their credibility is on the line every time they make a recording, and are generally very careful about such things. In addition, such recordings are, from the moment they are completed, treated as evidence and handled with the same care and security as any other piece of evidence in a criminal investigation. This is done to avoid any possibility of tampering or damage. O’Mara continues:
Rather, he took on this task to properly accomplish an accurate audiotaping of this even himself. He failed miserably. Rather, Mr. Crump’s attempt to secure an accurate audiotape of the witness’s statement, if that was his true intent, had the opposite effect. Instead of securing testimony, Mr. Crump’s attempts cause only more concern with the audiotaped statement itself, given the inaudibility, and chopped up and missing segments of the statement.
In addressing Judge Nelson’s reasons for denying the deposition of Crump, O’Mara noted that Crump engaged ABC News, calling Crump’s decision to involve them “suspect.” I’m going to have to nominate O’Mara for the understatement of the year award. He also called out Crump for the very poor quality–and its unsuitability as evidence–of Crump’s recording. He added:
Had Mr. Crump only taken the extra step of securing a copy of the entire ABC audio, which was readily available to him (particularly since it was he who set up the media ‘exclusive’), most of the concerns regarding the audiotaping would have dissipated. By failing to maintain even the most minimum modicum of evidence retention and security, Mr. Crump put not only himself in the position of a required deposition, but it also negatively affected the proper presentation of this evidence to this Court and to a jury, all, unfortunately, in derogation of Mr. Zimmerman’s overriding right to a fair trial. Mr. Crump should not be able to hide behind his own technical incompetence to suggest that he cannot be deposed on these very relevant issues; certainly not when his actions caused the concerns that now must be investigated.
Mr. O’Mara convincingly argues against all of Judge Nelson’s assertions in the earlier denial of deposition–I recommend you read pp. 9 of 18 through 18 of 18 in the motion–in such a way that it is very difficult to see how Judge Nelson could now possibly fail to order that Crump be deposed. He argues that Crump is not opposing counsel. Here’s just a brief, but representative, portion of the argument:
Indeed, Mr. Crump does not claim work product privileges as to his interview with Witness 8, and explains circumstances how he has waived that privilege consciously and purposefully in his affidavit…and explained that he was not going to assert the issue of work product as to this interview: ‘…we want to show that we’re not hiding anything, we’re not going to file an attorney work product or any of that kind of stuff, and I told [the commentators] the circumstances of how this interview came to be.’…Insofar as Mr. Crump’s interview of Witness 8 is concerned, he is a fact witness, and he does not have a work product privilege. If there was one, it has been affirmatively waived.
There are several other interesting bits of information provided by Mr. O’Mara in his arguments:
c. The defense believes that Mr. Crump is aware of how the State Attorney’s Office came to know about Witness 8. This information cannot be gained from any other source, as the State has refused to provide that information to the defense. This is relevant because it is important for the defense to understand the circumstances surrounding how this very important witness came to be know by the authorities prosecuting Mr. Zimmerman.
Again, a masterpiece of understatement. And this:
e. Only Mr. Crump knows why information on Witness 8 was not given to the Sanford Police Department or the Florida Department of Law Enforcement…even though multiple requests were made by FDLE.
The Conservative Treehouse, which has also been following this case, has an interesting, related post that traces connections between the Scheme Team to the Justice Department, potentially including Mr. Obama’s recent nominee to be Labor Secretary, the execrable Thomas Perez. It would seem that the connections many thought existed are, more and more, coming to light.
This is particularly relevant in light of this assertion in O’Mara’s motion:
a. Mr. Crump made a broadcasted statement and publicly mailed correspondence to the Department of Justice claiming Chief Bill Lee of the Sanford Police Department and State Attorney Norman Wolfinger met on the evening of February 26, 2012 and conspired not to have Mr. Zimmerman arrested; in other words, jointly participated in a ‘cover up’ of the death of Trayvon Martin.
O’Mara notes that any evidence Crump has as to the truth of such assertions would obviously be very relevant to the case. Again, a reading of the entire motion will be instructive, and represents the “state of the art,” so to speak, in this case, rather than mere conjecture.
UPDATE, 03-23-13 1145 CST: Jack Cashill, to whom I’ve previously linked in relation to this case, has another interesting article relating to Crump and Gutman and racial rabble rousing (how’s that for alliteration? Jesse Jackson would be proud–or maybe not…). Thanks to Nettles18 for the tip!
O’Mara’s motion reveals, again, how the prosecution has been slow-rolling what should be routine discovery in this case, discovery that should have been turned over to the defense from the beginning. A case in point is O’Mara’s request for information about Dee Dee’s supposed hospitalization.
O’Mara began asking for that information on August 23, and hearing nothing from the prosecution, had to renew that request on September 19. Still hearing nothing from the prosecution, they were forced to schedule a hearing for March 5, and it was only the evening before that hearing that the prosecution admitted that there was no such information, and that Dee Dee lied. It took more than six months for the prosecution to provide a bit of information that it could have disclosed in seconds at any time, and then, only when it became obvious they would have no choice but to disclose it.
Note too that the prosecution has refused to tell the defense how they came to be aware of Dee Dee. This is extraordinary. Witnesses do not just drop out of the sky or materialize as from a Star Trek transporter. The circumstances under which they come to the attention of law enforcement and prosecutors are entirely relevant and entirely necessary and routine matters that never require discovery motions, because such information is virtually always included in police reports. Concealing and refusing to disclose it is a sign of incompetence, corruption, or both.
It seems trite to note that it is the duty of any prosecutor to seek justice above all. The discharge of that duty includes providing discovery to the defense in a timely, reasonable manner. As I’ve previously argued in these pages, any competent, professional, ethical prosecutor is normally delighted to provide discovery to the defense, and to do so fully and early in any case. If the prosecutor has a solid case–and no prosecutor should bring a case, particularly a murder case–unless it is solid–why would he delay providing the defense the evidence that might very well convince the defense to take the best plea deal that can be arranged? Obviously, an ethical, professional prosecutor would not hesitate to provide such evidence for an instant, but an unethical prosecutor, a prosecutor that not only has no case, but who is seeing that case come apart all around them, day by day, very well might slow roll or withhold evidence, particularly damning evidence of the dissolution of their nonexistent case.
Now it seems clear that Mr. Crump has been caught in an obvious lie, a lie under oath–perjury. It is possible that this is only the first. It is further possible that truthful and complete testimony by Mr. Crump would unearth additional lies and the machinations of a racial grievance machine intent not only on convicting George and Shelly Zimmerman regardless of the lack of evidence against them, but on enriching the Scheme Team and its associates. I’ve little doubt that various worthies at the Department of Justice are also deeply involved in this case (the FBI doesn’t conduct investigations just for giggles). We have only begun to scratch the surface of that particular rock. It will be interesting indeed to see what sort of creatures run for cover when and if it is overturned.
Should Judge Nelson order that Crump be deposed, one can expect two things: he will obfuscate and do his best to avoid answering direct questions. He left himself an out by claiming he remembers nothing, but that’s not likely to be convincing when he is confronted by his own voice coaching Dee Dee. One can, however, expect him to take the Fifth. Oh yes: the more trouble Mr. Crump finds himself in, the more fervently the race card will be played.
As I noted in Update 22, if Dee Dee took the fifth, the consequences for her and for the prosecution would be most unpleasant. It seems she has, instead, opted for disclosure, and if this assumption is accurate, it is Mr. Crump, the Scheme Team, and the prosecution, that have been caught, yet again, in another Dee Dee explosion.
The most delicious irony is: they lit the fuse, and may soon–figuratively–resemble the unfortunate former residents of Pompeii and Herculaneum.