With a motions hearing set for May 28 and trial still set for June 10, last minute motions are flying in all directions. As I’ve previously noted, unlike in most cases, the content of motions in this case is revealing not only of fact, but strategy. As I’ve also noted, everything is backwards. The defense is doing its best to present the evidence and the facts, relying in large part on the investigation conducted by the police. This is particularly important if George Zimmerman is to be kept from testifying, which Mark O’Mara and Don West would almost certainly see as desirable. There are so many problems with the state’s case, that’s the smart play. Let it self-destruct; when your adversary is destroying himself, don’t interrupt him.
On the other hand, the prosecution is desperate to keep any information relating to Trayvon Martin’s activities and habits off the record, including what he was saying and doing even minutes before he confronted George Zimmerman that rainy night of February 26, 2012. Simultaneously, the prosecution needs that information–that’s its case–and wants to have every bit of innuendo that might tend to be negative toward Zimmerman featured prominently in court.
On the side of the defense is the evidence, precedence, rules of evidence and state and federal law. On the side of the prosecution is the media, the racial grievance industry, and the judge. All of this is leading the prosecution to try to suppress evidence that any rational prosecutor would absolutely want to have introduced at trial. The Orlando Sentinel–a paper that has generally favored the narrative–provides a summary:
…Prosecutors in the George Zimmerman murder case are asking a judge to block all testimony about Trayvon Martin’s school suspensions, marijuana use and a history – if he had one – of fighting.
They’re also asking Circuit Judge Debra S. Nelson to ban defense attorneys from introducing any social media posts he made or text messages he sent or received, including those from the day he was killed…
Defense attorneys contend they have evidence suggesting Trayvon was fascinated by mixed martial arts and fighting, and critics point to the teenager’s record of school suspensions and ties to marijuana use as reasons to believe Zimmerman, when he says the teenager was acting strangely then attacked him.
But Assistant State Attorney Bernie de la Rionda contends, in a series of new motions filed late Friday, that those things are irrelevant to what happened between Zimmerman, a 29-year-old former Neighborhood Watch volunteer, and Trayvon, an unarmed black 17-year-old, on Feb. 26, 2012, the night they got into a fight and the teenager wound up with a fatal gunshot wound to the chest.
What prosecutor would ever suggest that the fact that the initiator of a violent attack–as all evidence suggests and the prosecution’s investigator has admitted he has no evidence to contradict–was under the influence of marijuana at the time of the attack, had a recent history of violent and criminal behavior, and a self-documented interest in “thug” behavior and fighting is irrelevant? Obviously, no rational prosecutor would imagine such evidence was irrelevant, nor would he try to suppress it. Unless, of course, he was Bernard de la Rionda (BDLR) and he filed charges against the victim of the assault–a man with no criminal record–rather than the attacker. The Sentinel continues:
On Oct. 19, defense attorneys won the first round in their legal fight to get that information when the judge ordered Miami-Dade school authorities to surrender Trayvon’s school records and ordered Facebook and Twitter to release Trayvon’s social media posts and account information.
She ruled then that although Zimmerman and Trayvon had never met before the night of the shooting, a victim’s propensity for violence can be relevant.
The legal issue now is whether the information defense attorneys have turned up about Trayvon’s past is enough to convince her that jurors need to learn about it…
Trayvon had no arrest history, but he was serving a 10-day school suspension at the time of his death after police found an empty marijuana baggie in his backpack. His autopsy report also revealed that he tested positive for a small amount of marijuana.
Records from a Dade County Public School Police Department internal affairs investigation also reveals that earlier, Trayvon had been found at school with several pieces of women’s jewelry in his backpack and what authorities described as a burglary tool.
As I noted in Update 27, the folks at the Conservative Treehouse have discovered that the police force of that school district was manipulating crime statistics relating to minority-caused crimes–including Martin’s–by simply not reporting them to the police. Martin’s possession of contraband and a burglary tool was classified by the in-house police force as “found items,” and Martin was not turned over to the police, ensuring that he would not be stopped in his criminal pursuits, and the property would never be returned to its owners. Fortunately, this scam has been exposed and it is now possible that the owners of the jewelry might get it back. It is too late for Trayvon Martin, but the school district’s minority crime statistics look grand!
The Sentinel concludes with an abbreviated list of issues to be decided in the May 28 hearing:
What the jury should and should not be allowed to learn about Trayvon’s background will likely be the centerpiece of an all-day hearing May 28, which also will cover a laundry list of other issues, including:
Whether jurors should be sequestered and their names kept secret.
Whether the jury can be taken to the scene of the killing.
Whether voice-recognition experts expected to testify for the state have used a scientifically-valid method to come to their conclusions.
It’s Déjà vu All Over Again:
I reported on O’Mara’s motion for sanctions against the prosecution in Update 24. O’Mara’s motion principally dealt with the prosecution’s willful failure to live up to its discovery obligations, and BDLR’s lack of full disclosure with the court.
In Update 27 I reported on the last motion hearing where Judge Debra Nelson did her best to try to suggest that O’Mara had been engaged in wrongdoing (he had not), however, she did order BDLR to work and play well with others and to turn over all discovery. It would seem he has not been able to bring himself to do as she ordered.
On or about May 23, O’Mara filed a new motions for sanctions. O’Mara opened:
1. The defense has recently been made aware that the State has had access to certain discoverable information on the phone of Trayvon Martin, and that his information includes, specifically, relevant information for Mr. Zimmerman’s defense; relevant information for impeachment of State witnesses; and relevant information for potential rebuttal evidence from the state. Further, the defense is aware that the State had access to this information in January of 2013, in that they received and/or generated reports concerning this information.
This means, simply, that BDLR has repeatedly lied to the court, and continues to withhold information he is required, by law and more specifically, by the order of the court, from the defense. The best part is O’Mara is saying he has documentary evidence–reports–to prove it.
O’Mara notes that he filed a demand for discovery on April 25, 2013 specifically asking for this information and that during a hearing on that motion, BDLR claimed he had not received any further reports on that information. Back to O’Mara’s most recent motion:
…This was false. See April 30, 2013 State v. Zimmerman Hearing at 16:46:00:
MR. WEST: Have you received any information?
MR. DE LA RIONDA: No we have not talked directly to Cellbrite, Your Honor.
THE COURT: Or anybody else?
MR. DE LA RIONDA: No, Your Honor.
The State was fully aware at that time that there was information resident on Trayvon Martin’s cell phone, including pictures of Trayvon Maftin in possession of at least one weapon, pictures of marijuana plants, pictures of Trayvon martin smoking marijuana, pictures of marijuana blunts, and texts discussing, securing or purchasing firearms, and bragging about being involved in fights, etc.
O’Mara cites the relevant state and federal rules and decisions which make clear, as he has done in his past motions, that the information he is demanding is indeed relevant and discoverable and BDLR hasn’t a legal leg to stand on in slow walking and/or refusing to immediately turn it over. This passage is particularly devastating:
5. It is anticipated, based on the machinations of the State to date regarding the discharge of its discovery obligations, that they will argue that the forwarding of the BIN file to defense counsel completes its discovery obligation in regard to the information. Such a suggestion is similar to offering the 26 letter of the alphabet and stating that all words of discovery could be found within it. The BIN file produced is a series of zeroes and one, which can only be interpreted by appropriate software and have scoured the data, producing additional reports, including the exculpatory information referenced above. This is undeniable. While the defense has hired an expert to partially decipher the BIN file, it is unknown what information the state has been able to extract, and to the extent such information is discoverable, pursuant to the Young case as argued above, it should be forwarded to the defense.
O’Mara notes that this is a part of a continuing and ongoing pattern by the State to deny a fair trial to Zimmerman. There can be no other conclusion. He lists the many motions for discovery he has made, and adds:
Reference is further made to the State’s questionable explanation for its failure to forward information to the defense regarding the erstwhile non-hospital visit of Witness 8 [Dee Dee]. Mr. de la Rionda offered that he simply ‘forgot’, even though the defense has asked him on five previous occasions, including letter, email, motion and a notice of hearing. The only way this matter can properly be addressed is for this Court to inquire of the state regarding the existence of these reports, and to demand that they be forwarded to the defense.
Indeed. He forgot. BDLR’s forgetfulness is documented in Update 27.
Let’s take a moment to consider what has been revealed in this direct, six-page motion. Once again we discover that BDLR has had highly specific and very damaging (to his case) information available as early as five months ago (January, 2013) and has repeatedly lied about it, not only to O’Mara, but to the judge. Among that evidence was photographs on Martin’s cell phone, including:
(1) A photo of Martin holding what appears to be a Smith and Wesson Sigma semiautomatic pistol (it would have to be in 9mm or .40 S&W caliber). Martin, due to his age, could not have legally possessed a handgun;
(2) Photos of multiple pot plants (photos of items 1 and 2 are available at Talk Left.)
(3) Photos of Martin actually smoking pot;
(4) Photos of “blunts” (cheap, small cigars hollowed out and filled with marijuana. Martin often made reference to these in his social media posts).
(5) Texts relating to obtaining guns, and bragging about being in fights.
All of this and more–and there is much more–is directly relevant. It would be hard to find evidence more relevant to Trayvon Martin’s state of mind, his very being, on the night of February 26, 2012. But this is not close to all of the evidence involved.
The issue of the BIN data is very revealing of the bad will of the prosecution. O’Mara is correct. BIN data is simply binary computer code. Without the correct software to render it into script, it is useless, lines of “00101110001100,” etc.. BDLR could not have had intelligible information from the data without having it properly translated via the appropriate software, therefore, he had to have known that giving the defense only the BIN data–in a format obviously not easily translatable by common and easily available software–amounted to saying “what are you griping about? I gave you all the discovery. Sure, it’s in Martian, but you’ve got it all!” BDLR is again revealed to be a liar and entirely dishonorable. There is now more than sufficient information to institute disbarment proceedings, and perhaps even prosecution, in any state, should the legal establishment be so inclined.
The Beast Within:
In a reply to a motion filed on May 21, Don West replied to the state’s motion to exclude any and all information relating to Martin’s degree of marijuana intoxication. Prior to this reply we knew (Update 7) that tests of Martin’s urine revealed THC–the active ingredient of marijuana–in his blood to a degree that in some states, he would have been liable to a driving under the influence charge. West added substantially to our knowledge of Martin’s degree of impairment.
According to West:
…The active THC was measured at 1.5 ng/mL whereas the metabolite was measured at 7.3 ng/mL. This level is sufficient to cause some impairment (although it is considered to be less than that required for a DUI arrest) according to the State’s toxicologist, Dr. Bruce Goldberger.
West notes that when deposed, Dr. Goldberger cited Dr. Marilyn Huestis of the National Institute on Drug Abuse. He continued:
Dr. Goldberger opined that Taryvon Martin may have used marijuana within a couple of hours of his death or that it could have been longer than that depending on whether Trayvon Martin was a chronic user or an occasional user.
West also revealed other, very interesting and previously unknown, evidence:
From other evidence in the case, it is known that Trayvon Martin brought marijuana with him from South Florida to use while he was in Sanford and that he used it at least one time after arriving in Sanford prior to his death. Trayvon Martin was suspended from school for possessing a baggie containing marijuana residue and was known to smoke marijuana with his friends.
West notes that Martin was in Sanford because he was caught with that baggie at school in Miami. West then built a substantial case for inclusion of the information:
In George Zimmerman’s non-emergency call to the police, he describes the person, later identified as Trayvon Martin, as appearing as though he was ‘on drugs.’ Additionally on close inspection of Trayvon Martin’s physical appearance at the 7-Eleven, where he was recorded on video within an hour of his death, he ‘sways’ at th counter as if he’s under the influence of some substance. Taken all together, it is likely that Trayvon Martin was under the influence of marijuana at the time of his death and that his thinking and judgment were impaired at least to some degree.
Now we have the state’s own toxicologist on the record that Martin was almost certainly smoking pot within hours of his death, and that he was impaired. We also know about his school suspension for a baggie with pot residue, and we learn that the defense is prepared to present evidence that Martin smoked pot with his friends, a matter about which Dee Dee is sure to have knowledge. We also learn that the defense will present evidence that Martin brought pot with him to Sanford and smoked it at least once. This information is presumably found in Martin’s text messages.
Jeralyn Merritt of Talk Left also has a post on this issue that raises an issue I first discussed in Update 9, relating to Martin’s suspicious activities at the 7-Eleven relating to possible marijuana use.
O’Mara has also filed another motion for continuance on May 23, because the State has sprung yet another so-called “expert” on speech identification, a Dr. Reich. According to the motion, the state provided only a partial report on the evening of May 10. 2013. Talk Left has an article shedding a little light on Dr. Reich’s analysis (noted as the “second report” in the article):
The second report is so absurd I’m wondering if it wasn’t a joke. Parts of it are laugh-out-loud funny.
‘For example, approximately one second after the start of CALL3, Mr. Zimmerman makes a seemingly religious proclamation, “These shall be.” His speech is characterized by the low pitch and exaggerated pitch contour reminiscent of an evangelical preacher or carnival barker.
The statement is challenging for the untrained listener to detect as it occurs simultaneously with Trayvon Martin’s loud, high-pitched, distressed, and tremulous ‘I’m begging you.’ and the 911 Dispatcher’s ‘Nine-one-one.’ Many of Mr. Zimmerman’s ‘side-bar’ utterances are subject to such multiple-talker masking effects and to low signal levels.
It seems the Washington Post originally hired Reich to listen to the call in 2012:
In an effort to find out what might be discerned from the crucial 911 call, The Washington Post retained Reich, 67, a former University of Washington professor with a doctorate in speech science who has worked for prosecutors and defense attorneys in hundreds of criminal and civil cases over a period of more than 35 years.
Where many people have heard only vague yells on the recording, Reich said that he has found language. Reich also identified two distinct male voices outside, in the background of the recording – one younger, one older – that he concludes are those of Martin, 17, and Zimmerman, 28.
To familiarize himself with Zimmerman’s voice, Reich also listened many times to a recorded call that Zimmerman placed to police minutes earlier that night and that has established much of what is known about the moments leading up to those last 45 seconds:
To put it as succinctly as possible, the prosecution must be absolutely, run- about-screaming, bumping-into-walls desperate. Reich’s “analysis” seems to be nothing more than listening to the sample really carefully a whole bunch of times. Dr. Reich by implication presents himself as a “trained listener.” And this trained listener heard George Zimmerman say “these shall be” in the manner of a carnival barker or evangelical preacher while his head was being repeatedly thrust into a concrete sidewalk, and this during “multiple talker masking effects” and “low signal levels.” In other words, he really couldn’t hear what was being said because too many people were talking at once and the volume was too low.
I can think of many things I might say when in great danger or distress–in fact, I’ve said a great many of them over the years. “These shall be,” or anything remotely like that, was never among them, nor have I ever heard any such pronouncement or anything like it from others in similar circumstances. Various obscenities tend to predominate. My personal favorite tends to be “Oh s**t!” Go figure. I wonder how one is “trained” to hear such things?
Merritt is right; this is utterly absurd, and O’Mara and West would reduce Reich to a pile of ashes within minutes, even if Judge Nelson were foolish enough to allow this utterly unscientific tripe to be heard. No rational prosecutor would even think of using such an obviously lame “expert” witness. That they obviously are requesting the use of this witness indicates just how badly they’ve struck out with the FBI and other witnesses who at least have the cover of using some scientifically accepted methods recognized by the justice system. This is forcefully and convincingly explained in Don West’s reply to the state’s response to his motion for an evidentiary hearing dated May 21, 2013. The state has no voice analysis evidence that is scientifically acceptable, and even the guesses provided by various “experts” yield nothing, yet BDLR keeps spending taxpayer dollars on “experts,” hoping to throw their testimony at the wall in the expectation that at least some of it will stick.
Text message information obtained by the defense is not in the least helpful to the prosecution. As previously noted, Martin’s own words portray him as a pot smoker and criminal, and it’s clear that various friends and family members knew of his bad and criminal behaviors and tried to dissuade him from them. Those conversations can be found here (Note: there are many redactions):
(4) Four pages: 02-17-12 through 02-21-12. Martin talks about getting a gun, and about drug use.
(6) Two pages from 10-28-11 through 11-21-11. Martin brags about fighting and being suspended from school.
(7) One page from 04-11-2011 through 12-30-2011. Martin brags about fighting, and getting in trouble. The context suggests his friends know this is common for him.
(8) One page from 02-10-2012 through 02-19-2012, discussing the purchase of a .22 revolver.
There are, no doubt, more of these, and more far more harmful to the prosecution, as BDLR is trying to conceal them through his BIN data ploy.
Also included in the defense’s notice are a group of photos of Martin from his cell phone. These photos depict him with false gold teeth, and making obscene gestures. They also appear to show him involved in refereeing a fight, and reveal him to be, rather than a small and helpless child, a tall, well-developed and muscular teenager.
There are also a variety of documents from Zimmerman’s neighborhood clearly indicating his reasonable concerns for the security of that area:
(2) An e-mail from Zimmerman to the neighborhood about an attempted burglary, dated 02-03-12.
(3) An e-mail from Zimmerman to the neighborhood about a burglary, dated 02-07-12.
(4) An e-mail from Zimmerman to the neighborhood about the apprehension of a thief, dated 02-20-12.
(5) A tweet from the Retreat at Twin Lakes on 02-12-12, touting the neighborhood watch leading to four arrests for local burglaries.
An additional bit of possible evidence for the defense is eight separate SPD animal reports over several years in the area. This is significant in that it was the Sanford police that encouraged Zimmerman and his wife to arm themselves for protection from aggressive dogs in the area.
The court of appeals, as this is being written, has yet to respond to O’Mara’s motion for cert. That response, if it overturns Judge Nelson and grants O’Mara’s request to depose Benjamin Crump, will absolutely require Nelson to grant a continuance of the June 10 trial date. O’Mara has filed a response to Florida AG Pam Bondi’s response that utterly destroys Bondi’s arguments, and her misstatement of O’Mara’s. As with all of O’Mara’s submissions in this case, it is well written, clear and understandable.
We arrive on the eve of the May 28th motion hearing, which is scheduled to take all day, pretty much where I expected us to be. The prosecution continues to behave badly, failing in its obligations of discovery, and repeatedly lying to the court. All of its failings appear to have been an attempt to run out the clock and to keep the defense from presenting a completely effective case. For a competent prosecutor, this would not be an issue. Let the defense do its best, for the truth and the facts would normally win.
For the justice system, however, the gravest sin is that BDLR has lied so badly and been so easily exposed. None of this, to date, has seemed to bother Judge Nelson in the least, at least not for public consumption. However, BDLR has lied so often and so egregiously that no judge in their right mind could allow it go unpunished. To do that would be to utterly destroy respect for the legal system, a matter that is usually of great concern to judges. It remains to be seen whether the narrative, or public faith in and the integrity of the justice system, are of more importance in Florida.
Should the voluminous and constantly growing evidence of Trayvon Martin’s bad character and behaviors be allowed as evidence? Absolutely. Generally speaking, this kind of information is allowable if it is relevant to the issues at hand. Because Zimmerman’s defense is based on self-defense–particularly an unprovoked attack by Martin that put him in fear of serious bodily injury or death–factors that would tend to shed light on why that attack might have occurred are surely admissible and not prejudicial. Considering the evidence, it boggles the mind to imagine that BDLR really thinks the fact that Martin was impaired by pot is not admissible.
Zimmerman thought Martin was under the influence of something when he observed him, and he was correct. The 7-Eleven tapes indicate him swaying and unsteady as though impaired. Martin’s texts, which the prosecution is relying on to try to build a second-degree murder case, reveal Martin to be a drug user and criminal. The prosecution can’t open the door to these lines of inquiry and then try to shut it when the defense wants to walk through.
What would not generally be admissible? Decades-old allegations of childhood sexual play by Zimmerman. Non-scientific guesses amounting to nothing more than someone listening really closely to absolutely sub-standard and unintelligible speech samples.
We still don’t know the exact content and time frames of the calls Dee Dee made with Martin revolving around the time he was killed. Presumably, that is part of the information BDLR is trying to conceal from the defense. As I’ve often observed, no prosecutor tries to hide evidence from the defense if he has a competent case. That evidence could have no other effect than to encourage the defendant to roll over and beg for a plea bargain. Not so in this case. Each new revelation of previously undisclosed evidence does nothing but support Zimmerman’s account, and further badly damage the narrative.
Trayvon Martin, sadly, is being damaged by his own words and actions. One can argue, to at least some degree, that many young men, particularly those who are shuttled between homes, try to act “tough,” bragging, fighting, perhaps even experimenting with drugs. Many of those young men eventually grow up and beyond youthful indiscretions. But many do not, and others end up in jail, or tragically, dead. That these young men are often in trouble with the police, jailed, injured or killed is not bad luck, prejudice, or ‘profiling,” but the result of their own bad choices.
I don’t know enough of Martin’s parents to make any judgement about them. Perhaps they, like some, were so involved with their own struggles they had little time for Trayvon. Perhaps they were devoted and attentive parents, but Trayvon was beyond their control. Perhaps the truth is somewhere in between.
The picture being painted of Trayvon Martin by his own photographs, associations, behavior, social media posts and his text messages is that of a young man heavily involved in drugs, and beginning to become ever more involved in the kinds of dangerous crimes–assault, burglary, theft–that all too often end in disaster. This is not a scholar, but the kind of kid any principal would want out of his school because he’s just too disruptive and destructive to himself and others. I’ll not be the slightest surprised if Martin’s school records show him to be failing most, of not all of his classes, to be often absent and tardy, and to have a wide range of behavioral referrals. This requires no prescience on my part, merely experience.
And this information too is relevant. Were it not for Martin’s bad behavior at school, he would not have been suspended and in Sanford on February 26, 2012. A ten day suspension is either the result of a very serious single incident, or more likely, the result of a number of less serious incidents finally amounting to a lengthy suspension. The misbehaviors that led to that serious suspension are obviously relevant.
This self-portrait has–for the honest observer–completely erased the narrative’s soft-focus portrait of a slight, skinny, smiling, friendly, studious, Skittles-carrying child with a bright future, fleeing from a huge and hulking white-Hispanic brute profiling him for wearing a hoodie, and intent on murdering him while simultaneously calmly reporting his behavior on a phone call with the police. Would such a young man, impaired by pot, attack a stranger daring to look at him the wrong way? Anyone who does not know the answer urgently needs a refresher course in reality.
But pot smokers are mellow! Perhaps, some. In drug enforcement circles, there are a variety of aphorisms. One suggests that it’s better–through generally more dangerous–to work with speed freaks as informants. Pot smokers are generally too lethargic, while speeders have loads of energy. However, no rational cop buys entirely into these stereotypes. I’ve seen more than my share of paranoid and aggressive pot smokers. Drugs affect different people, well, differently. It is not out of the ordinary for pot smokers to get into fights, even to kill others. Cheech and Chong are laid back, dopey and funny, but that’s comedy, not reality.
In every way that counts, George Zimmerman’s account stands, and as the State’s investigator Dale Gilbreath testified at the initial bond hearing on April 20, 2012 (Update 3) , the state has no actual evidence to contradict Zimmerman’s account. I expected that at least some previously unknown evidence would come out over the last year that might chip away at Zimmerman’s story, but everything revealed to the public has only supported Zimmerman more strongly. No wonder the charging affidavit was incompetent and devoid of actual evidence: the prosecution has no case. This charge should never have been made.
Should the jury be taken to the Retreat at Twin Lakes? Of course. This is not at all uncommon, nor is it prohibited by Florida law in any way. The only reason Judge Nelson might refuse such a request was to deny the jury direct knowledge of the time and distance issues that do not fall to the favor of the prosecution.
Can the jury be sequestered and their names kept secret? Again, there is more than sufficient precedence for this. Zimmerman is entitled to a jury of his peers, there is no constitutional prohibition regarding sequestering a jury or keeping secret their identities. As long as Zimmerman is satisfied–and he is making this request–there should be no issue beyond the difficult logistics. Considering the extraordinary publicity this case has generated–I’ve thus far done 29+ separate articles–failing to grant this kind of request could easily constitute reversible error. It would be expensive and not easy to do, but it’s inherently reasonable.
Unless BDLR can hide exculpatory discovery from the defense even into the trial, evidence so explosive and convincing as to counteract everything that is currently known–and that would absolutely provoke a mistrial, perhaps even a dismissal with prejudice in a competent, honest justice system–there can be only one outcome to this sorry episode in Florida justice.