On April 30, 2013, a hearing running just over three hours was held before Judge Nelson. A video of the hearing can be found here. Accounts of the hearing by local news sources, which have covered the case in greater detail than national news sources, were surprisingly incomplete. A report by ABC News’ Matt Gutman was equally sparing with the facts. But before delving into the most recent developments, a brief timeline will help to explain how the case has arrived at this point.
March 25 and March 26, 2013: Mark O’Mara filed a motion for sanctions against Bernard de la Rionda (herineafter BDLR) of the special prosecutor’s office, for multiple discovery violations, and also filed a motion for attorney’s fees resulting from those violations. Scheme Team attorney Benjamin Crump is inextricably intertwined with all of this. I covered these issues in Update 24, which explains in detail the evidence that is the cause of and basis for these motions.
March 28, 2013: BDLR filed an intemperate, unprofessional response to O’Mara’s motions. I covered this response and its many omissions, evasions, misrepresentations and its petty and unsavory tone in Update 25.
April 4 and 5, 2013: On April 4, BDLR filed a response to O’Mara’s request for reimbursement due to his petulant obstruction of the videotaped deposition of Dee Dee conducted by O’Mara. I posted Update 26, which dealt with this response, and with the letter–supposedly written by Dee Dee (we now have yet another story about this from the prosecution) to Sybrina Fulton, Trayvon Martin’s mother. Also on April 4, O’Mara filed a writ of certiorari asking the District Court of Appeal for the Fifth Circuit to overturn Judge Nelson’s decision denying a deposition for Benjamin Crump. Update 26 also dealt with this issue.
April 24, 2013: Florida State Attorney General Pam Bondi filed a response to O’Mara’s petition for a writ of certiorari. This was apparently written by Assistant AG Pamela Koller, but went out over Bondi’s signature.
This is, in itself highly unusual. The attorneys general of states usually involve themselves only in cases directly involving the business of their state, and having the greatest importance. Arguing against cert in what is, in reality and with politics stripped away, an unremarkable criminal matter, suggests nothing less than substantial and suspect political involvement. Having appointed a special prosecutor, should such matters not be hers with which to deal? Does this not suggest a lack of trust of the special prosecutor on Bondi’s part?
Bondi‘s arguments are likewise pedestrian, focusing around claiming that cert should only be granted for the most serious matters, matters that absolutely cannot be solved post-trial. She also essentially argues that lawyers should virtually never be deposed, trying mightily to label Crump as opposing counsel when he plainly, and by his own admission, is not and has no privilege to assert.
Another indicator that Bondi, who is reportedly a friend of Benjamin Crump, is deeply politically involved is her statement of “fact” about the incident, which repeats the narrative with all of its false assertions, right down to Martin’s being “profiled” and carrying tea and Skittles, and the obviously false claim that Martin was “…trying to return to his home.” This has been disproved by physical evidence and Dee Dee’s statements wherein Martin repeatedly told her he was not trying to run home. Anyone familiar with the case should know this. This statement of facts seems a near copy of the terribly defective affidavit I covered in Update 2.
In addition, Bondi minimizes the substance of O’Mara’s claims by not accurately representing the evidence of Crump’s lying about his recording of Dee Dee as presented in O’Mara’s petition, giving short shrift to the existence of a recording that makes it clear that Crump was engaging in substantive matters with Dee Dee when he claimed otherwise.
April 25, 2013: O’Mara filed a demand for discovery for all documents, data, and every other bit of evidence relating to Trayvon Martin’s cell phone, or any phone or phone number associated with him.
O’Mara also filed a demand for discovery for any audio files or related “cleaned up” 911 phone call files relating to the screams for help occurring and recorded just before Martin was shot.
These demands were directly related to statements made by Crump, and to a lack of responsiveness, or evasion on the part of the prosecution.
April 26, 2013: O’Mara filed a response to Bondi’s arguments.
It was these issues–and a potential immunity hearing–that were the subject of the April 30 hearing.
As I’ve frequently noted, this case is essentially upside down. Behaviors and motions that one would expect from the prosecution are the daily stuff of the defense, and vice versa. This hearing continued this bizarre role reversal, very much to the detriment of the rule of law and the reputation of the Florida system of criminal justice. One normally expects the prosecution to stick strictly with the facts, to play scrupulously by the rules, and to be ethically above board at all times. One normally expects the defense to be misleading, to be stingy with the truth, to twist the facts and evidence and to be unethical to whatever degree they consider necessary to win. These stereotypical roles continue to be exactly reversed in this case.
I have also been critical of Judge Nelson, but with some restraint. No longer. After watching the three-plus hour hearing in its entirety, I’ve learned a number of things not covered by the media, and that, based on my many years of experience in the criminal justice system, are now clear.
THE ABC NEWS REPORT:
Written by Seni Tienabeso and Matt Gutman, the report focused on the decision by the defense not to have a pre-trial immunity hearing.
The pre-trial Stand Your Ground hearing would have given the judge the discretion to free Zimmerman, eliminating the need for a trial. But the validity of a Stand Your Ground defense would be determined solely by a judge. Zimmerman’s defense team has decided to put their case before an entire jury.
The ABC report noted that Judge Nelson put Zimmerman under oath and quizzed him about his decision not to have an immunity hearing. However, it did not mention that the Defense objected to the judge’s actions, which were unusual. Defense attorneys usually speak for their clients in such matters. It’s clear that Zimmerman was as reluctant to answer Nelson’s questions as O’Mara was for her to ask them. There are good reasons for this, which I’ll address later.
Of course ABC continued and buttressed the narrative:
Ben Crump, a lawyer for the Martin family, said Zimmerman’s decision to forego a stand your ground hearing ‘is very telling.’
‘We believe the defense’s decision to waive a pre-trial hearing and to merge the Stand Your Ground Hearing into the trial is to prevent putting George Zimmerman on the stand and to preclude the public and the potential jury pool from previewing the many inconsistences in George Zimmerman’s story,’ Crump said.
ABC also dealt with an absolutely vital issue:
Zimmerman, looking heavier than he did a year ago, has been living in an undisclosed location for the past year, apparently living with a body guard.
By all means, read the entire report, which is very brief, highly selective in its reporting, and which misses virtually all of the real news in the hearing. The narrative lives at ABC.
Rene Stutzman and Jeff Weiner of the Orland Sentinel were more complete. A sampling:
Earlier in the hearing, the judge addressed discovery issues: Nelson ordered the state to turn over any cell phone data for Trayvon or Zimmerman that they haven’t given already.
She ordered the state and defense to turn over to the other side any ‘cleaned up’ or enhanced audio of the 911 call which captured screams leading up to the shooting.
Nelson also granted the defense’s request to add five more witnesses to their list, even though the deadline she set for new witnesses had passed.
The last portion of the hearing centered on the defense’s requests that Nelson to admonish and fine prosecutors for, according to the defense, hiding information and causing delays.
For example, the defense says the state delayed in revealing that Witness 8, who was on the phone with Trayvon in the moments before his shooting, lied about going to the hospital after learning of his death.
‘We can’t get ready for trial,’ O’Mara said. ‘We will be unprepared for trial because of everything they’ve done to us.’
However, the judge was skeptical of his argument. She said she found no prejudice to Zimmerman, but reserved ruling on a motion, which sought costs for depositions the defense says the state delayed…
The judge also ruled that the $1 million-plus settlement Zimmerman’s homeowners association paid Trayvon’s parents to settle a wrongful death claim will be turned over to the parties.
However, the judge said the settlement will be redacted in the public court file, which likely means the precise dollar amount won’t be revealed.
Daryl Parks, an attorney for Trayvon’s parents, said after the hearing that Zimmerman’s defense attorneys have no business using information about the family’s settlement at trial.
It appears to be an attempt ‘to smear the Martin family, and we don’t like it,’ Parks said.
What Parks actually objects to is the public being made aware of his payday as a result of his racial grievance manipulation of public sentiment and the justice system.
Of all of the reports I’ve reviewed, the Shreveport Times was most complete and balanced, yet it too missed the real news and real substance of the hearing. That said, it actually did address some primary issues while offering some perspective:
The decision by O’Mara to skip the pre-trial immunity hearing illustrates that winning that hearing may not have been easy for the defense and that it was not worth subjecting Zimmerman to cross-examination several months before trial, said Randy Reep, a criminal defense attorney in Jacksonville.
While Reep thinks Zimmerman’s story has remained fairly consistent, the lawyer said the defense team would have been taking a risk by having Zimmerman tell his story before a judge and then, if not successful, a jury.
‘O’Mara decided that the likelihood of winning the immunity hearing was outweighed by the danger of subjecting his client to the scrutiny of the state more than once,’ Reep said.
The immunity hearing would have also placed the burden of proof on the defense which may have had to call Zimmerman and other witnesses such as forensic experts to explain why Zimmerman feared for his life and used deadly force. By waiting until trial, O’Mara kept his strategy and potential surprise evidence to himself and enters a legal arena where the burden is now on the prosecution since Zimmerman is presumed innocent at trial.
The strategy, however, is also risky and eliminates a path to acquittal for Zimmerman. ‘You never know when you put a case in the hands so of 12 people,’ Reep said.
Still, O’Mara will have two opportunities during trial to ask for a ‘judgement of acquittal,’ where the judge can decide to acquit Zimmerman without the jury, Reep said. O’Mara can ask when the prosecution rests and when the defense rests but such acquittals don’t happen often, he said.
The Times also addressed another important matter:
In the end, Judge Nelson ruled that no violations or prejudices had occurred. However, she reserved judgment on a motion by Zimmerman’s lawyers to make state prosecutors pay $4,555 in attorney’s fees.
State prosecutors delayed depositions by five hours in March because they objected to them being videotaped, said O’Mara. The court later ruled that the witnesses — including a friend of Trayvon who claims she was on the phone with him the night of the shooting — could be videotaped, he said.
At the beginning of the hearing, the issue of a “cleaned up” audiotape of the 911 call, where Zimmerman has testified he screamed for help prior to shooting Martin, was discussed. The Defense explained that Crump has said that such a “cleaned up” or “enhanced” tape was played for Tracy Martin after he heard the original tape at the Sanford Police Department. Sanford officers have testified that upon hearing that initial tape, Martin said the voice screaming for help was not Trayvon Martin. Crump has claimed that after hearing the “cleaned up” recording, Tracy Martin did identify the voice as Trayvon Martin’s.
The defense claimed that the prosecution was not forthcoming with information about such a tape, thus the demand for any such enhanced recording. Judge Nelson asked BDLR about the existence of any such tape and he immediately sidestepped and did not directly answer her. She did not demand that he answer but asked again in a general sense and asked if the prosecution had given a copy of the recording to an “expert” to be enhanced. BDLR replied: “that is possible.”
“That is possible”?! How is it possible that the lead prosecutor in this case doesn’t know whether or not he has given such a tape to an expert to be enhanced? And how is it possible that any judge would allow such a slippery answer of any attorney? Either BDLR has such a tape or he hasn’t. Either he has done it or he hasn’t. Yet the judge allowed him to get away with this, and closed the matter by saying that if any such tape existed, the prosecution had to give it to the defense within 24 hours of its enhancement. Because the judge never pinned down the existence of such a recording and/or the intentions and actions of the prosecution, she has essentially issued an order to enforce something that may or may not exist, at least as far as evidence enforceable by her order is concerned. I’m sure, however, that BDLR is entirely trustworthy regarding this matter.
Turning to the issue of sanctions against BDLR, O’Mara noted that the issue causes loss of respect for the justice system, and he moved to strike BDLR’s written response from the record.
In a preview of his later comportment, BDLR claimed that his petulant response was “a record of what happened in this case,” and claimed that O’Mara didn’t tell him what was “going on,” adding “it’s his right” (not to tell BDLR everything he was doing. An odd admission in that BDLR is correct; O’Mara has no such obligation). This method of making circular, misleading and off topic arguments that do not address the matter at hand appears to be BDLR’s normal way of conducting himself in court.
Judge Nelson acknowledged that BDLR’s pleadings were inappropriate, but she did not do so directly and was careful to suggest that O’Mara was also somehow at fault, while providing no evidence. Having read all of the documents relating to this issue, I have no idea what she’s talking about. The only mildly negative thing O’Mara said about any attorney was about Benjamin Crump’s failure to properly record and preserve Dee Dee’s interview as evidence, saying that in that endeavor, he miserably failed, which he did. All of O’Mara’s writings have been professional and non-personal. BDLR’s, quite the opposite. No reasonable person reading these documents could come to any other conclusion, yet Judge Nelson seemed determined to avoid placing any direct blame on BDLR, while ascribing underserved blame to O’Mara.
Nelson disposed of the issue by refusing to strike BDLR’s writings, saying that she would, if O’Mara submitted specific passages he wanted stricken, consider removing those from the record. She gave him five days, and five days for BDLR to respond. She also said nothing about the sanctions, but it was clear that she had already made up her mind. After all, if she wouldn’t strike the writings that were a large part of the evidence for sanctions, she surely would not impose sanctions based on what she obviously considered trivial. She confirmed my impression later in the hearing.
Don West’s testimony was interesting. West was careful and professional, honestly and fully answering BDLR’s frequently confusing and nonsensical questions, most of which were actually angry, accusatory assertions. He explained that after BDLR told the court and defense that he had given all discovery to the defense, they found out about his August, 2012 meeting with Dee Dee. He explained that BDLR did not respond to multiple requests for discovery relating to Dee Dee’s supposed hospitalization, until March 4th, the night before the hearing when the prosecution would have been forced to admit she lied.
West testified that when they deposed Dee Dee, she told them that she informed BDLR about her lie when she spoke with him in August, 2012. This is very significant in that BDLR knew that his most important witness was a perjurer, and purposely withheld it from the defense for nearly a year. He would dissemble about even that indisputable fact.
West also testified that the defense asked BDLR for Trayvon Martin’s school records and BDLR told them he didn’t know whether he had them or not. West testified that he didn’t buy that answer. This too is extraordinary. In a case where those records are important evidence that could easily help determine the outcome of the trial, how could the lead prosecutor have no idea whether he had those records or not? If true, BDLR is stunningly incompetent. If false, how could he be considered as other than a liar working against the interests of justice? How could one avoid believing him to be maliciously denying exculpatory discovery to the defense.
West testified to another very interesting matter learned at deposition with Dee Dee: Dee Dee did not write the “letter” (copy in Update 26) to Sybrina Fulton herself. A friend named “Francine” whose name she supposedly did not know(?!) at state expense, accompanied Dee Dee to her interview in Jacksonville and wrote–in some sense–the letter on 03-19-12, the same day as the Crump interview. Much remains unknown about that letter, such as why it was written, at whose insistence, who actually wrote–put pen to paper–the letter, and how much of it was composed, and how, by Dee Dee. West also testified that BDLR did not disclose the existence of this letter, which was also withheld for nearly a year and was eventually found in another filing.
West also explained that the defense continually tried to get proper digital copies of the photos of Zimmerman’s injuries (See Update 17 for photos), but were initially given only black and white copier reproductions, then color copier reproductions, and finally, actual digital prints that truly revealed the extent of the damage done to Zimmerman by Martin.
As I noted in Update 17, it was only when O’Mara filed a demand motion that he received the proper digital color photos. As I also noted, it’s not uncommon for a police records section to send black and white copier copies of photos in an initial discovery package. That’s generally the technology they have available. However, the defense then requests specific photos in final, evidence-quality form, and they are routinely provided. This saves time and money for everyone involved.
However, once the case was turned over to the special prosecutor and the Sanford PD’s involvement ended, it was BDLR’s duty to see that the defense got the real photos. It is clear that he slow-rolled the production of evidence. West testified that this has been the normal procedure in this case: the defense makes multiple requests for discovery which are ignored, obtaining the evidence only when the defense has been forced to go to the court to have production ordered.
During his cross-examination of West, BDLR was clearly angry. He constantly paced, scowled and gestured broadly and dramatically. He was continually rude and condescending and belittled West whenever he could. His lack of proper courtroom decorum was striking, but Judge Nelson did not admonish him to behave properly. Even so, West easily outclassed him.
West did push back upon occasion, but carefully and professionally. When BDLR tried to misrepresent matters relating to the Dee Dee/Francine letter, West testified that he had asked BDLR when he first knew about the letter and BDLR would not answer. BDLR ignored West’s point and testified–much of what he said was argumentative testimony rather than questions–that Sybrina Fulton took the letter out of a Bible at her deposition, which was when he first saw it. BDLR admitted, without acknowledging that admission, that he knew of the letter and withheld it for the better part of a year.
Among the most amazing exchanges was BDLR’s accusation that the defense was getting its legal argument from bloggers. He specifically named The Conservative Treehouse. West kindly observed that this was not, in fact, true. BDLR replied in a snotty, inappropriate manner, demonstrating that his similar writings were not an isolated incident, and the following exchange took place:
BDLR: ‘I’m not going to argue that; it speaks for itself.’
West: ‘It does not speak for itself.’
BDLR continually misrepresented West’s testimony, a matter West had to several times correct. BDLR continually obfuscated, implying that because the prosecution had properly turned over some discovery–a matter acknowledged graciously by West–that the defense had everything and had no grounds for complaint, even as they were talking about discovery that had not been produced.
BDLR’s questioning opened the door for West to explain how Crump had edited the Dee Dee tape and in so doing, perjured himself in his affidavit. Just as West was warming to the issue provoked by BDLR, Judge Nelson stepped in and shut West down, saving BDLR who was clearly floundering and in trouble.
A short time later, West was able to get on the record that he received no help from Crump or BDLR in obtaining a tape of the interview from ABC News. He explained that despite asking for it, ABC did not provide a copy, but posted it on their website. It was there that the defense first heard the tape.
Trying to suggest that the defense did not tell the prosecution about things, BDLR demanded to know if the defense informed ”the court” about discussions with ABC. West explained that all of that material was in motions to the court, and testified that that information, as a part of motions, was discussed with everyone.
The defense is not required, ethically or otherwise, to notify the court or prosecution about every phone call they make during the investigative process. And materials included as part of motions are obviously known to the court and prosecution, though BDLR has already admitting in another document submitted to the court (See Update 26) that he doesn’t bother to read such things. Surely BDLR knows this, or is he, again, simply trying to mislead?
A part of BDLR’s tactics seems to be asking trivial questions, questions that any rational lawyer would never ask. This seems to be designed to confuse issues and to hide the logical fallacies of his assertions. For example, he demanded to know if, during their deposition of Sybrina Fulton, the defense asked “a lot of questions.” West, mildly surprised by such an obvious and nonsensical question answered that he did. Consider that BDLR was present for that deposition. He has a transcript of the deposition. He knows precisely how many questions were asked. It’s akin to asking if there is a lot of grass on a golf course.
BDLR’s questions as to time, place and fact were so inept it’s hard to tell if he’s merely incompetent, of actively trying to be misleading. I suspect it’s both.
West, at one point when BDLR’s cross examination was particularly odd, was moved to comment that when BDLR conducted Dee Dee’s interview, he didn’t identify Sybrina Fulton as being present, and did not put on the record the fact that family members and Scheme Team lawyers were also present. West asserted that information was indeed important and exculpatory, which of course, it is.
BDLR, continuing in testimony rather than question mode, asserted that Dee Dee’s lies were not exculpatory. BDLR claimed that when O’Mara was told about Dee Dee’s lies on March 4th, O’Mara told prosecutor Guy it wasn’t a big deal, mentioning that several times in a particularly argumentative way, trying to downplay his malfeasance.
West (and later O’Mara) explained that Guy in fact asked O’Mara to treat the information with “some sensitivity.” West testified that when O’Mara, who took the call from Guy, told West about it, he was very angry and was, in fact, still angry about it and handled the matter for the defense from that point. BDLR still tried to downplay it, but West quickly made BDLR back down and change the subject.
It is interesting to note that this is the first time O’Mara brought this request for “sensitivity” up in public, and that he did it only in response to and to rebut BDLR’s misleading assertion. O’Mara did, in fact, try to handle it with some sensitivity, but BDLR figuratively shot himself in the foot.
One of BDLR’s more incredible assertions was that the defense somehow took more than a year to provide lists of all witnesses. He was implying that the defense was somehow acting improperly. West calmly, as if lecturing a particularly dull student, explained that the prosecution had, in the course of preparing for trial, filed no less than 15 separate supplements with additional witnesses. West explained that adding witnesses as they are discovered was normal procedure, that the defense notified the prosecution and court of witnesses as they became aware of them, and that most of the delays were due to the prosecution’s slow-rolling and withholding of discovery.
This is, of course, absolutely correct. In the process of preparing for major trials, it is common for witnesses to be identified throughout the process, sometimes even during trial. One may not learn about a previously unknown witness before speaking with another witness that was also previously unknown. This is absolutely a non-issue, yet BDLR was behaving as though it was a major revelation of defense wrongdoing. It’s akin to accusing the defense of actually talking to potential witnesses. Again, if BDLR actually believes that to be improper, he is amazingly incompetent. If not, he is amazingly dishonorable and dishonest, yet, Judge Nelson did not call him on this, or any similar misbehavior.
O’Mara’s re-cross was revealing, and compared to BDLR, a model of professional rectitude. He was able to get onto the record that most of the witnesses about which BDLR complained were actually Sanford Police Department officers that took crime reports, and residents of the Retreat at Twin Lakes (Zimmerman’s neighborhood at the time of the shooting) who had been the victims of burglaries, thefts and similar crimes prior to Martin’s attack on Zimmerman. O’Mara informed BDLR about all of this by phone. BDLR immediately backed down from this issue.
West began to talk about several other very interesting, previously unknown issues. He testified that only recently had the defense received information from the Florida Department of Law Enforcement about cell tower locations relative to Trayvon Martin’s phone on the night in question. He also said that only recently had the defense received SPD reports of Trayvon Martin’s criminal record. He characterized this as Martin’s “crimes,” and Judge Nelson immediately shut him off and stopped this flow of information about discovery apparently withheld from the defense.
During BDLR’s examination of West, O’Mara objected several times. Even when Judge Nelson sustained his objections, BDLR did not stop, and Judge Nelson did not stop him, requiring O’Mara to rise to continually object. I’ve never seen such obvious pro-prosecution bias, particularly when a prosecutor is so inept.
At the end of the hearing, Judge Nelson slammed the door on the defense, first saying she hadn’t decided if there had been any discovery violations, despite voluminous evidence in motions, and testimony of just that. She repeatedly demanded of O’Mara “how is the defense prejudiced?” She asserted that “what you’re alleging as violations have been cured.”
Nelson cited a case where a discovery violation was discovered only during the course of a trial. In other words, she was implying that unless a discovery violation was discovered at the very last minute, even at trial, it wasn’t really a discovery violation at all. Of course this standard is nonsensical. The danger is such violations are likely not to ever be discovered and the defendant’s right to a fair trial compromised. O’Mara tried to argue that the fact that some violations had been discovered and “cured” before trial does not lessen the violation, and has a very harmful effect on the public’s confidence in the justice system, but Nelson was not listening.
O’Mara is absolutely correct. Under Judge Nelson’s apparent standard, a discovery violation really isn’t a discovery violation if it’s somehow caught before trial, and of course if it’s not caught at all, no one would ever know, but justice would be thwarted. That’s why there are rules about discovery and that’s why sanctions are appropriate for prosecutors that abuse those rules. The violation is the withholding of discovery itself, not when or the manner in which it is discovered. If a prosecutor inadvertently withholds discovery as opposed to maliciously and knowingly withholding it, the violation has occurred in any case, but the severity of sanctions would be something to consider.
Attorneys and judges sometimes forget human beings are involved. They speak about dealing with issues after a trial, but the result of that trial might be to put an innocent man in prison. That’s not a non-trivial procedural matter to him.
During this exchange, BDLR made perhaps the most amazing admission thus far, but prefaced it with a comment that indicates either an incredible lack of self awareness or a grotesquely over-developed sense of irony:
I’m not going to get into name calling.
He then admitted–on the record–that he did not, in fact, tell the defense about Dee Dee’s lies, but he helpfully explained:
I forgot about it.
He forgot about it. He forgot about his most important witness committing perjury, perjury that he, through his utterly incompetent placement of the victim’s mother right next to Dee Dee (to say nothing about the pack of lawyers, family members, and who knows who else present) may have had a hand in producing. He forgot about a matter that very well may torpedo his case. Telling the defense about that matter, despite being specifically asked about it by the defense in person, by e-mail and phone on multiple occasions over many months, just slipped his mind. It eluded him until mere hours before he would be forced to admit it in court. Only then did he “remember” the matter.
He finished with again implying that because he had actually lived up to his obligation to provide some discovery, he couldn’t be culpable for knowingly or negligently refusing to provide other discovery.
What competent judge could possibly hear those statements without understanding exactly what was going on? None, of course, unless that judge was determined to contribute to and uphold the narrative, and in so doing, ignore their oath to fairly administer justice. Any competent jurist hearing a prosecutor making such a pathetic and unprofessional admission, particularly one that could be nothing less than a lie, absolutely would not have ignored it. Any jurist with any ethical sense would have known they could not allow such a egregious violation pass unremarked upon and unpunished.
After hearing BDLR’s bizarre admissions, Judge Nelson finally delivered the outcome I expected from the beginning of the hearing. She announced that there were no discovery violations and therefore no prejudice toward the defense. BDLR was held blameless.
She said she would withhold judgment on monetary awards until after the trial, and would do the same on the issue of attorney’s fees requested due to BDLR’s obstruction of Dee Dee’s videotaped deposition. Regarding that matter, she actually volunteered that on the day O’Mara was trying to get in touch with her to proceed with the deposition, she didn’t get the message until late. She was actually covering for BDLR and implying his unreasonable and petty behavior was her fault. I’ve never seen a judge do anything remotely like that. It’s like a particularly bad Twilight Zone script. That’s the kind of thing reserved for chambers, out of earshot of the public. O’Mara noted that he gave BDLR the option to proceed and if Nelson ruled against him, he would destroy or give the tape to BDLR, but he refused, and Nelson brushed that aside.
O’Mara did make one interesting announcement. He said that in the near future he would be filing a “major” motion, which he expected to require “an extended evidentiary hearing.” Judge Nelson did not want to hear about it. The next motion hearing is set for May 28. The matter of a deposition for Crump remains undecided.
I learned a great deal watching that hearing.
I viewed the video of the hearing because I have no personal knowledge of those involved, which has limited me to forming opinions based on third person accounts and news stories. Having spent three hours with the principals, I’m better able to form opinions. I have no doubt, for example, why O’Mara chose not to have a pre-trial immunity hearing.
In the early days of my police career, when winning seemed far more important than it should–I knew better later–I would have been delighted to have Judge Nelson hearing my cases. In this case, her antipathy toward George Zimmerman and the Defense is unmistakable. Reading Zimmerman’s face and body language during the hearing, I had the impression he knows he’s not going to get a fair trial. Nelson very much appears to be the kind of jurist that takes personally the daily, common maneuvers one finds in a courtroom, and holds grudges. She seems to be the kind of judge that would retaliate against any lawyer that dares to question her decisions.
I’m sure that O’Mara and West understand only too well that they would lose an immunity hearing before the first word was spoken. At such a hearing, the burden of proof would be entirely on the defense. Any competent attorney would know that in this case, any judge would tend to want to defer the matter to a jury to avoid the political consequences that would accompany a dismissal. They would also know that Judge Nelson was not a fair jurist. Her manner toward O’Mara, her determination to toy with the defense rather than efficiently and honestly answer their motions, her ignoring of the prosecution’s admissions of malfeasance, and her rulings make that plain.
Keep in mind that O’Mara and West also know Nelson’s reputation, and have considerable experience in this case alone in sidebars at the bench, and in private conversations in chambers. They know a great deal more about Nelson’s intentions and biases than we do, and I’m sure that information factored heavily into O’Mara’s decision.
Knowing this, they also know that when Nelson denied a dismissal, the media, prosecution and Scheme Team would blitz the airwaves, claiming her refusal to dismiss the case amounted to a guilty verdict. We also don’t know what O’Mara’s “Major” motion might be, but if it’s similar to some that have already come to light, it may make his decision making process more obvious yet.
Another issue readers might want to explore has been uncovered by the folks at The Conservative Treehouse, the BDLR-imagined wellspring of defense strategy. They’ve uncovered, through FOIA requests, the fact that the Miami-Dade School District, apparently at the insistence of the superintendent–Alberto Carvalho–and with the collusion of Chief Hurley of their internal police force, were, during the time Trayvon Martin was a student there, deferring criminal reporting for black students. Due to a substantial minority crime rate–hardly surprising–a political decision was apparently made not to turn such students committing even felonies over to the police, but to handle them through school discipline procedures.
When Trayvon Martin was found in possession of multiple pieces of women’s jewelry and a burglary tool, he was not referred to the Miami police, and the case was written up as “found items,” essentially ensuring that in the name of political correctness, Martin would go unpunished and the victim would never recover their property.
On February 15, 2012, the school district made a press release:
Miami-Dade Schools Police (M-DSPD) was recently commended by the Florida Department of Juvenile Justice (DJJ) for dramatically decreasing school-related delinquency in Miami-Dade County public schools.
M-DSPD has the distinction of decreasing school-related juvenile delinquency by an impressive 60 percent for the last six months of 2011, which was the largest decline in any school district in the state…
Well, sure, when you’re pretending delinquency doesn’t really exist and calling stolen property from burglaries “found items,” the reductions in “crime” you can accomplish are really amazing. Consider however, that had Trayvon Martin actually been held accountable for what now seem to unquestionably be serious crimes, instead of receiving a slap on the wrist, he may not have been in Sanford that night. Ironically, treating Martin like a misbehaving child instead of the budding criminal he seems to have been, may have been a contributing factor in his death. But hey, the Miami-Dade schools are the very model of modern delinquency-reducing schools.
This is unsurprising. Many schools are actually loath to discipline students, because so doing is an inescapable admission that they actually have to discipline students. Many schools actually do as Miami-Dade did and do away with crime by ignoring or reclassifying it. Colleges are particularly bad about this, but many public schools aren’t slouches either
And interestingly, there is an Obama Administration connection. Remember that Mr. Obama proclaimed that if he had a son, he’d be like Trayvon Martin. In furtherance of that kind of thinking, the Obama administration is working on a national mandate that would be near and dear to the hearts of the management of the Miami-Dade Schools: racial quotas for school discipline. It’s an issue I wrote about for PJ Media.
Just as AG Eric Holder thinks illegal immigration is a human and civil right, he apparently finds that certain favored victims groups of students should not be subject to discipline, and one of the determining factors of whether such students should be disciplined at all is their racial distribution in the population. Holder is primarily referring, of course, to “my people”: blacks.
Some readers commenting on the Martin series have taken me to task for mentioning Martin’s being discovered in possession of jewelry he could not explain and a burglary tool–a screwdriver. I would suggest that they–and all readers–take the link to TCT where they’ll discovered that the property Martin had has been identified as taken in a residential burglary a short distance from his school. I guess in this case, a screwdriver really was a burglary tool.
I also recommend readers take the PJ Media link to see why the Obama Administration would find Miami-Dade’s policies to be the very model of enlightened education policy, despite the inescapable fact that it fails students, the victims of crime, and society at large.
I can’t say what I learned via the video of the hearing surprised me. I’m reasonably good at reading between the lines, and people’s writings and actions define them. In many ways, the experience merely confirmed what I already knew. George Zimmerman is innocent, but the judge presiding over his trial seems determined to ensure the narrative ends with a predetermined, politically correct conviction. She did indeed approve for the defense some minor matters relating to witnesses and other procedures no judge could deny without calling far too much attention to themself. But the freedom and discretion we must give judges in our system of justice can be badly abused by unscrupulous jurists. It will not take long for us to see if my impression of Judge Nelson is born out.
For the sake of justice, and America, I hope I’m wrong, but I doubt it.