“There is a tide in the affairs of men, which, taken at the flood, leads on to fortune…”
William Shakespeare: Julius Caesar, Act IV, Scene 3
Oh my. On April 5, 2013, in Update 26, I addressed O’Mara’s request for a writ of certiorari to depose Benjamin Crump. Finally, the District Court of Appeal for the Fifth District has handed down its decision.
The major elements of that request were:
(1) Crump has information essential to the defense that cannot be obtained in any way other than a deposition.
(1A) De la Rionda knows how Dee Dee came to the attention of Crump and the Prosecution, but refuses to tell the Defense, thus a deposition with Crump is required.
(1B) ABC News kept only a short clip (5 minutes) of the Crump interview, therefore, Crump is the only person who can reveal information about many aspects of that interview.
(2) Crump deceived the Court, the public, the prosecution and the defense in his affidavit, therefore he must be deposed in order for the truth to be known.
(3) Crump is not a party to the case, therefore cannot be opposing counsel.
(4) Crump has no work product or other privileged protection, and even if he did, he has affirmatively and voluntarily waived that privilege in several significant ways.
(5) It is Crump’s insertion of himself into this case, his deceptions and manipulations, that have made it necessary to depose him, therefore, he should not be protected from the consequences of his own actions, and indeed, state law allows his deposition.
(6) Failing to depose Crump will cause irreparable damage to Zimmerman’s right to a fair trial, damage that cannot be addressed by appeals after the trial.
The writ was necessary because Judge Debra Nelson initially told O’Mara he would be allowed to depose Crump, but just before that deposition was scheduled, Crump filed an affidavit and asked Nelson to accept that in lieu of a deposition. Nelson reneged on what she told O’Mara and accepted the affidavit, refusing to change her mind even when O’Mara proved Crump had lied in that affidavit.
Among the most significant issues upon which Crump and Nelson hung their hats is the idea that Crump was opposing counsel and that he had a work project privilege that would prevent his being deposed. In Update 26, I wrote:
In the Crump motion, either Crump is opposing counsel or he is not. Either he has some privilege under the law or he does not. The evidence produced by O’Mara and Crump’s actions and statements make clear that he is not opposing counsel, that he has willingly waived any possible privilege. The evidence also makes more than clear that Crump has made himself a witness, and more, a racial provocateur whose statements and agitation have led directly to Zimmerman’s arrest and prosecution.
Despite the obvious evidence and law that would, to the reasonable observer and jurist, command a deposition of Crump, Pam Bondi, the Florida State Attorney General, weighed in against the deposition. In Update 27, I wrote:
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.
The Court of Appeals did not agree with Bondi, Crump or Nelson. From the decision:
We conclude that Zimmerman was entitled to take a limited deposition of Crump to inquire as to the substance of Crump’s interview of Witness 8 and the circumstances surrounding the interview. We grant the writ because we would be unable to ascertain the degree of harm resulting from the wrongful denial of this discovery in a plenary appeal.
The Appeals Court noted that Nelson found Crump “an opposing counsel,” and that his work was “protected work product” because he was representing the Martin family in “possible future civil litigation against Zimmerman.” The Appeals Court was brief and to the point:
We respectfully disagree with the trial court’s analysis. First, the fact that Crump represents Martin’s family does not make him ‘an opposing counsel.’ As acknowledged by Crump in his affidavit, he was not acting as a lawyer for the State or the defendant, nor could his interview of Witness 8 be found to constitute trial preparation in the pending criminal case below.
Don’t mistake “respectfully” for admiration of Judge Nelson. Here, it’s merely polite legal prose. The Appeals Court cited the relevant precedent, and moved on to the second primary issue:
Second, we also conclude that any testimony given by Crump as to the substance of his interview of Witness 8 and the surrounding circumstances thereto would not violate the work product privilege because any privilege that may have existed was waived when Crump conducted the interview in the presence of two media representatives who subsequently aired portions of the interview on national television.
The Appeals Court also noted that Witness 8’s testimony is highly relevant, and that Zimmerman:
is entitled to discover whether such testimony is consistent with prior statements made by Witness 8 to Crump and whether such testimony was in any way influenced by the manner in which the interview in question was conducted.
Reading between the lines, it’s clear that the Appeals Court accepted O’Mara’s presentation and knows what Crump is up to. In what might reasonably be read as a substantial slap in the face of Judge Nelson, the Appeals Court wrote:
Finally, although not a basis of the trial court’s ruling, we reject any suggestion that Crump’s affidavit would serve as an adequate substitute for a deposition.
The decision listed several limitations on the deposition, and further noted:
We are confident that the trial judge will be able to take the steps necessary to ensure the deposition is limited to the subject areas described above.
Crump, Nelson and Bondi lost on every point of law and reason, and the Appeals Court did not attempt in any way to salve their feelings. In this case, one might become used to Bernie de la Rionda’s unprofessional and petulant legal writings and expect some of that tone here. The Appeals Court chose instead to write as did O’Mara: with brevity and fidelity to precedent, fact and the truth.
When completely overturning a judge in a case of national importance, an appeals court might soften its language and give the judge some comfort thereby. Not here.
Most damning is the Appeals Court’s notation that Crump’s affidavit was not “an adequate substitute for a deposition.” In many ways, this goes to the heart of Judge Nelson’s legal reasoning and intentions. The Appeals Court obviously recognized that Nelson was trying to protect Crump and limit O’Mara’s discovery. Their one sentence citation of precedence, which might be delivered in a first year law class, is a substantial rebuke of Nelson:
Cross-examination [of Crump rather than his false and self-serving deposition] is the principal means by which the believability of a witness and the truth of he testimony are tested.
While the decision does not specifically call out Crump for his lack of veracity–at least not explicitly–it is clear that the Appeals Court fully accepted O’Mara’s contention that Crump had not been truthful, that he had inserted himself into the case, and that his legal citations had no merit. By allying themselves to Crump and his deceptions and racial manipulations, Bondi, de la Rionda and Nelson demonstrated their own lack of integrity and their own poor–and potentially partisan–grasp of the law.
Another important issue is the Appeal’s Court’s complete acceptance of O’Mara’s argument that any harms resulting from Nelson’s denial of the deposition cannot be healed on appeal should Zimmerman be convicted. This calls into question her judgment and her ability to conduct a fair trial in a very direct and unsparing way. Why, one might ask, should any judge fail to recognize this simple fact? Doesn’t such failure to recognize the law and precedence give cause for concern about Judge Nelson’s basic competence and ability to conduct a fair trial? After all, the issues here are not highly technical, obscure issues of law for which there is no precedence.
This decision raises several additional issues:
The Appeals Court has given Judge Nelson a bright line to follow in this deposition, essentially removing much of her discretion while simultaneously appearing to leave it untouched. They’ve given her a warning. If she tries to make this deposition difficult for O’Mara or to irrationally limit his ability to conduct it, it would appear that the Appeals Court will deal with that in short order.
Should O’Mara request a continuance to conduct this deposition, it will be difficult indeed for Nelson to justify not granting it. I can’t imagine Crump being cooperative in this, which would likely make a continuance necessary and entirely reasonable. It’s possible that Crump will give the appearance of cooperation, but complete honesty and cooperation would seem to entail admission of perjury and repudiation of The Narrative and all of the financial and reputation benefits that would provide to Crump. Unlikely.
We now have an interesting situation. When confronted with his lies, Crump has few options. He can try to dissemble and avoid answering, he can take the Fifth, or he can just shut up and refuse to cooperate. I suspect he may end up trying all of these options. In any case, this deposition will absolutely not be good for the prosecution, the Scheme Team, the Martin Family, or The Narrative. Interestingly, this may, in some ways, rehabilitate Dee Dee, and make at least some narrow portions of her testimony–those relating to the Scheme Team’s manipulation of the legal system and public opinion–more reliable.
While it is possible that some significant discoveries will be made as a result of this deposition, one should not expect such revelations nor make too much of them. Despite the fact that Crump, the state AG, and special prosecutor and Judge Nelson did their best to protect Crump and The Narrative, the Appeals Court has reasserted the rule of law. How far that assertion of integrity in the law extends remains an open question, but I suspect Crump, de la Rionda, Corey and others must now consider the possibility that the press cannot protect them, and they might well find themselves in career and legal hot water as the case progresses.
I have little doubt there are more surprises to come in this case. The actions of Crump, de la Rionda, Bondi and Nelson might be read to indicate great fear about what a deposition of Crump might reveal. Why else would he submit a provably false affidavit? We surely don’t know all of the evidence, and I fully expect the prosecution’s arrogance to lead them to make significant mistakes, opening doors to the defense the prosecution absolutely does not want opened.
It’s also possible they’re too arrogant to understand and act upon the shot the Appeals Court has fired across their respective bows. Shakespeare’s admonition means that we must take advantage of our opportunities when they arise. I expect O’Mara and West to take full advantage of the opportunity the Court of Appeals has handed them.
There is more. Judge Nelson in another case where the defendant asserted self-defense failed to give the self-defense instructions to the jury. That case was overturned today as well.
Click to access 5D12-796.op.pdf
Clearly DCA is not happy with Judge Nelson.
Maybe that’s why she was moved to civil cases. The GZ criminal trial is her last criminal trial.
I didn’t know that. Still, if she fails to act correctly in the George Zimmerman trial, she might find herself out of a job.
She is going to be the judge in the suit against NBC. Doesn’t that county have very many judges?
Nettles… short answer: No. Back when Judge Lester was being challenged I looked up the Judge directory for that County.
There’s not too many Judges. I can’t remember exactly, but there’s maybe around four assigned to the criminal courts. Another 4 or 5 in civil/family.
The downside of so few Judges is that they probably all hate Zimmerman. No doubt Lester hangs at Nelson’s doorway and says:
“I told you that Zimmerman #@%! was nothing but trouble. And now you got the 5th on your a$#”
With all that has happened in that court between Zimmerman and the Judges IMO there’s no way Zimmerman can get a fair trial.
No matter how fair a Judge might think he or she is, it is difficult to to put hard feelings aside when slapped around by the appeals court.
Michael, I really enjoy your posts and went looking for you after you left the Last Refuge. I don’t know what went on there with you and at this stage water under the bridge but a number of us were talking about missing your input the other day on my blog. I’m no blogger honestly, but I felt forced to open up a daily thread to talk about the GZ case and I and I know the others would love to have you be a part of it when time permits.
Please come by if you are able.
I second that invitation, Nettles.
I thought it odd that after ItsMichaelNotMike was “banned” or whatever happened at the CTH, he later reappeared and it looked to me like SD asked him to do that. I remember one, or maybe more, hearings he posted with his usual common sense informed commentary.
Chip Bennett said:
One of the resident legal eagles can correct me if I’m wrong, but wouldn’t it be novel under any circumstances for an affidavit to suffice in lieu of a witness being deposed?
And yes: while the court put quite strict parameters around the scope of Crump’s deposition, it succinctly repudiated all of the smokescreen erected by Crump and Blackwell, and endorsed by Nelson. (Bondi, for her part, mostly challenged the ripeness of the Writ. The DCA cut through that lame argument in all of one or two sentences.)
Chip… you are correct. The law in most courts (civil or criminal) is that unless the parties agree (they seldom do) you cannot “force” or compel an opposing party to accept an affidavit in lieu of depo testimony. The reason I say “most courts” is because in extremely rare situations a “written deposition” might be ordered or the court is limited in the amount in controversy (such as a small claims court matter) that only written depositions are allowed.
But yeah, when depositions are part of the discovery process, even Crump or Blackwell would NEVER accept a sworn statement from a witness, especially as a response to a depo they properly noticed and served.
When I watched Blackwell appear in court the day Crump was supposed to appear for his depo, and instead they offered an affidavit in lieu of Crump being examined, I was floored, not because of the affidavit (that I had yet to read), but that Crump convinced a lawyer (who looked reasonably intelligent and experienced) to request the court accept a statement in lieu of Crump testifying.
While many non-lawyers on other blogs and media websites did NOT understand the significance of what Crump was trying to pull, experienced litigators were shouting WTF!
P.s. I don’t recall Judge Nelson’s ruling in this regard, but I’m not sure she ever answered the question, nor acknowledged as proper Crump’s affidavit stunt. With the tap of a few keys she would upset centuries of constitutional law (due process; right to confront accusers – and witnesses, so to speak) and be legislating from the bench .
As I recall the way she avoided the issue was finding Crump “opposing counsel” (or “council” as some erroneously write) and therefore the attorney/client privilege applied, as well as the work product doctrine.
I suppose even Judge Nelson saw that ruling a witness can opt to provide a sworn statement in lieu of appearing for a properly noticed deposition would be a major change in the law, including statutes, and both Constitutions.
Too bad Judge Nelson, this was her opportunity to get her name in lights, not only for legislating from the bench, but figuratively the U.S. and Florida Constitutions.
Just realized that this was also a slapdown of Bruce Aren’t-I-Special Blackwell. Nice.
As always, Mike, you offer a concise (where possible) and coherent analysis.
Any judge who has to be told Crump is not opposing counsel by an appellate court should not be allowed on any case, criminal or civil. Is she trying to get thrown off of the case, too?
And now she is gonna be on the family bench (where her insane rullings can be kept secret)?
pinecone (minpin) said:
Sending Nelson down to divorce court likely was to remove her from consistently accepting whatever her beloved prosecutors say is gospel in criminal cases. I don’t believe prosecutors (state attorney’s) are involved in divorces and family matters. When Nelson was announced as the new Zimmerman judge, I remember reading that she often sided with the state. That has become abundantly clear. The state accepted the Narrative, including Corey gushing over the Martin parent’s and claimed she is seeking justice for Trayvon, and be damned with Zimmerman and his rights.
Bondi should be the one with the most red face. She has been an active participant in the malicious prosecution of George Zimmerman. She could step in at any moment and put an end to this farce, just as the GA. state atty. general did in the Nifong case. She won’t because as she said Crump is a good friend of hers, and that he was a fine lawyer. Apparently Bondi doesn’t have the good judgement to know when to cut her losses. She is up for re-election next year and needs the black vote I guess.
you dont know much about divorce court, do you?
that is where men get fleeced and women get child support for 2 decades or more….(his body, he gets no choice)…….
while women demand equal pay at work, they want unequal child distribution…..women get child custody far mnore than half the time (hardly equal, but who cares, it is only men who suffer this kind of sexism behidn closed doors supposedly to protect the kids, but really to protect how we screw the men).
Great article Mike,
I think this is also a subtle warning that the DCA is watching the proceedings, Judge Nelson got 2 decisions overturned on the same day, the other also involved a case of self-defense. She has other important decisions that will affect the case coming up, the Hearing on the 6th could have a great effect on the trial and how it will be conducted. Hopefully, she will heed the warning and follow the law accordingly.
I agree bori, but that would imply that she actually understands the law.
I don’t think Nelson’s problem is understanding the law but how she like to interpret it. Read the other decision released today reversing the judge, I firmly believe the 5th sent Judge Nelson a clear warning that she needs to follow the law.
“I firmly believe the 5th sent Judge Nelson a clear warning that she needs to follow the law.”
…and if she doesn’t, then what?
This is twice in one week’s time that the DCA has found this exact same judge guilty of reversible error in two separate cases… at what point will they actually do something more than merely issue a stern warning?
She already has one foot out the criminal courts door anyway, and I doubt she much cares that she is violating the rights of these defendants.
The message is that she will be overturned if she does not follow the rules. It may not seem like much, but it does give MOM the indication that the 5th will not allow railroading.
“The message is that she will be overturned if she does not follow the rules.”
But again, how much of a warning or a threat is this really to a criminal court judge who already has her bags packed and has one foot out the door…?
It’s all bark and no bite under the circumstances of this being her last criminal trial anyway…
And we’ve already seen the contempt and wrath of Nelson at the last hearing… granting every motion in limine the prosecution submitted save for one.
The defense only has one shot to make a first impression on the jurors with its opening statement, and Nelson has effectively cut them off at the knees… and she left it up in the air as to whether she will even allow any of this evidence in during the actual trial phase.
It’s pretty significant. First, they are human. They don’t like being told by their superiors that they screwed up again. Second, they are lawyers, so a lot of what they do is reputation based. I don’t think she wants to be known as the judge who screwed up a high profile politically charged trial like Judge Ito.
Finally, she’s tried several times to get the open spot on the Florida Supreme Court and was a finalist in the last appointment. Screwing this trial up in an obvious way would crater her future hopes for the Florida Supreme Court.
That would imply that there is a carrot involved and she still can get it. Going to civil cases might mean she will have lost all hope of advancement. If she has too much ego involved in this case, she will do as she pleases and ignore higher directives. The spotlight of internet media scrutiny has failed to correct her so far.
Also, the political climate is such that she may think she could safely ignore what her superiors are telling her.
You said: The spotlight of internet media scrutiny has failed to correct her so far.
Lest we forget, the other side would not agree and maybe they matter more to her than us. Since she is clearly pro prosecution, then she might be doing what SHE thinks is right.
That aside, I hear what you are saying.
Can anyone with legal background weigh in on this – if the 5th DCA sees what they consider to be judicial and/or prosecutorial misconduct in the treatment of Zimmerman, is there a possibility that they could dismiss the charges with prejudice, meaning that they can’t be brought again?
I pointed out on Nettles’ blog that I felt that the DCA was trying to send Nelson a major message by overturning her on the self-defense case and granting the writ in the same week. I feel that the self-defense case in question was pretty relevant to Zimmerman, because in that case, not only did she get slapped down for not giving the self-defense instructions, but she also was admonished for not granting summary judgment of acquittal on one charge when the defense asked for it after the prosecution case in chief. In other words, they said “the state didn’t prove its case and Judge Nelson should have seen that and granted the motion for judgment of acquittal.”
Someone else suggested that they didn’t think that it was possible the judges at the DCA were all coordinating to give Nelson a message, since the two opinions were written by two completely separate 3-judge panels. I think that actually gives more credence to what I was suggesting, because that means there are SIX judges in Daytona who are telling her to get her act together. Any Zimmerman appeals would likely garner at least two of those six judges.
Natalie Jackson and Shayan Modarres were tweeting within a half hour of the decision that Crump was prepared to sit down with the defense tomorrow and get this done.
Surprising to me, Ms. Jackson also had a twitter conversation with defense attorney Richard Hornsby after the decision was known and suggested the state may not call W8 at all. Hornsby told her, if W8 doesn’t testify, the case won’t even get to the jury.
It is quite telling that the person they needed to get probable cause, they today argue may not even be relevant.
I’m very happy with the decision by the court. For the first time in a long time I read a court that asserted the defendant’s rights to a fair trial must be observed. I haven’t heard that in Lester or Nelson’s courtroom.
While it gave the defense a narrow window in which to inquire about the March 19th interview, I have no doubt that one day Mr. Crump will once again sit in a deposition to give testimony in a civil suit against him on just how that interview came to be in the first place.
I get that is not the issue before the court right now. It’s the witness and what she relayed to Mr. Crump that has to become known.
It will be quite interesting to watch how Judge Nelson now handles the Frey hearing and the sanctions to the state for discovery violations with the message and tone that I read in today’s decision.
I concur with you Mike, there will be more surprises ahead. Thanks so much for your perspective. I always enjoy reading here.
You are spot on, Nettles. I imagine Crump now, arms folded in front of himself, blinking hard like “I Dream of Jeanie” as he tries desperately to teleport to some other life. ;-)
I believe so as well, bori. And you are correct in that it is her interpretation of the law that leaves much to be desired. I do not believe she has a grasp on the law or how to interpret or apply it correctly. I’ve seen biased before, but Nelson seems more than just bias. She appears dim witted as well.
“I’ve seen biased before, but Nelson seems more than just bias”
I’d opine that someday we’ll learn that following the 10/19/2012 hearing, D.C. sent people to get Judge Debra Nelson under their thumb. I state that because ever since that hearing Nelson has appeared corrupted as though she’s all aboard the Florida Political Machine’s express train to railroad an innocent man into State Prison where conveniently he can be silenced forever. I wouldn’t be at all surprised if prior to 2016, Judge Nelson suddenly found herself headed towards the Florida Supreme Court & that’s indeed a scary scenario.
Were it not for the thinly veiled D.C. influence to affect political & judicial corruption, I’d agree with your opinion that Judge Nelson appears dim witted.
BTW: I think that Debra Nelson & Larry of the 3 Stooges would make a perfect couple
Chris Thorne said:
“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.”
It could be nothing less.
From the very beginnings of this regrettable contretemps, the political calculus has been crystal clear. The state of Florida is enormously economically dependent upon the tourist trade, to a greater degree than any other American state.
Riots are poison to tourism. Tourists as a class wish to relax and enjoy themselves, not to experience tension and stress and fright. (Los Angeles, another tourism-dependent domestic destination, took years to recover after the early 1990s riots it experienced.) This dynamic is especially strong in places such as Florida which market themselves as “family-friendly”.
And there are those on the left wing of the African-American community who are, for their own self-aggrandizing purposes, cynically willing to threaten the incitement of riot on an epic scale, if a show trial with a predetermined outcome is not performed, and an appropriate guilty verdict produced promptly.
Florida’s business elite, again with an unvarying eye to the dollars of the tourist trade, realize this with immediacy and with considerable alarm. That business elite, you can be assured, have leaned on their political allies to avert any expensive untowardness in the Martin-Zimmerman affair. Hang the “white Hispanic”, hang him high, and let the normal course of Floridian tourist commerce resume unmolested.
This dynamic is not by any means unique to Florida. It has been demonstrated elsewhere on several occasions. But whatever else it may embody, it does not embody any sense of disinterested, objective justice.
A very good comment, Chris. I agree and thank you.
Reblogged this on A world at war.
I believe The prosecution has, indeed, decided to drop W8, not only because she has credibility problems, but her account is too close to that of GZ. A brief exchange of words, then the fight began. I think they will try to use W6 statement that he heard them arguing, and they kept getting closer as he heard them as proof that there was more than a brief exchange, and that during this prolonged exchange GZ put TM in fear of his own safety. I don’t think that will work, because there is too much evidence to suggest the fight started at or near the T. What W6 probably heard was GZ screaming for help after he had been hit and TM telling him to shut up as they stumbled together towards W6′ townhouse. but who knows. The important thing is that all this was known to the SPD, and Wolfinger, and they decided they had no case. The only thing that changed was the introduction of W8. If the prosecution never intended to call her, and was using her as a diversion to sap the defense time and money, I must say it worked well. Sweet justice would be for the defense to call her, and make them live with their own creation.
“Sweet justice would be for the defense to call her, and make them live with their own creation.”
Sweet justice, indeed!
I would love to hear a legal opinion regarding how the prosecution could drop W8 when W8 is mentioned prominently on the “Information” that was used to arrest Zimmerman and charge him with 2nd degree murder.
Did 5th DCO telegraph information (testimony) given by W#8 is required to determine 2nd degree or lesser included offense? If so I don’t see how with the PCA State can keep W#8 out. If they do it’s over.
DCO is DCA. Sorry.
“Sweet justice would be for the defense to call her, and make them live with their own creation.”
If the State doesn’t call DeeDee/W8, I think we’ll see a motion for a dismissal at the close the State’s case. That could end things right there. But if not, and it moves on to the other side… yeah, I FULLY expect MOM/West to call her to the stand. I got a bunch of the JQers/Dogpound people mad at me way back last year (this was before they decided they hated me ;) ). I said something like, “Don’t you realize Dee Dee is not any kind of threat to the Defense? It’s the Prosecution who are afraid to use her. If she ever takes the stand, it’ll be the Defense calling her.” They were like, “Oh yeah, how do you know that, Jello? Did Bernie tell you that, huh?” ;)
I view number 8 as a possible ace to hold. Do you know how much notice she must be given to be in that courtroom? Who would pay her travel expenses?
Speaking of expenses, how much does Crump want to be paid for a depo? Since he was so emphatic in court a while back in plain view of the public about getting to the truth and his willingness to whatever it takes, should he paid anything?
For sure he is NOT an expert witness so I am wondering now what his new classification really is. Maybe her highness has created a new Nelsonian term for whatever she thinks he is.
At this point, I think I should shut up about that term cuz, given our history of thinking alike, you are likely to have in mind the same ones I do.
EXCELLENT Article! Thank you!
Checking in.. Will be back later..
The journalists should hang their heads in collective shame
I don’t think this quite gets to the point of a benchslap on Nelson, but it is certainly the windup. You are correct in that Nelson was reversed on every major point, in a writ. Both are unusual. I also think this was a warning from the higher court that they are not content with how the trial is being administered.
As for Crump, I don’t think he will take the fifth. I’m not certain, but I think that taking the fifth in this sort of situation is grounds for disbarment. The 5th protects you from criminal prosecution, but not from civil rulings, and ethical misconduct is a civil matter. In civil matters, when one takes the fifth, there is an inference that there has been criminal conduct that has to be protected. For him to have committed a criminal act is misconduct.
If Crump takes the fifth on this deposition, it is very unlikely that he will be the lawyer for the Martin family’s lawsuit, if he continues to be a lawyer at all.
One more thing, on the other opinion released today, regarding the self-defense instruction. This is absolutely a warning to Nelson, particularly this part:
Nelson has been specifically instructed that Zimmerman is entitled to a self-defense argument, and the jury must be instructed on it.
I worked all afternoon on this. I like it. Will comment later, but here is what I sent MOM West.
1. Regarding Zimmerman’s May 2013 Sanctions Motion, as it says on the left page, at the bottom highlighted paragraph, Zimmerman complains that prosecutors are “hiding the ball,” stalling, and thwarting discovery, and denying him due process. Where highlighted MOM West are saying prosecutor de la Rionda has been in possession of Trayvon Martin’s cell phone content for at least a few months.
IMO, the investigation memo on the right PROVES that since March 2012 (NOT 2013) de la Rionda has been in possession of Trayvon’s incriminating cell phone data (that is, the pics and text messages prosecutors two weeks ago gave to MOM West.)
I contend this because why 30 days after the shooting would de la Rionda go into such detail about Trayvon and guns?
True, prosecutors could have been attempting to poke holes in Zimmerman’s story, that Trayvon saw or felt his gun and made a play for it. If Trayvon knew nothing about guns then Bernie could perhaps impeach this aspect of Zimmerman’s version of events.
Note: This would be motive for de la Rionda to at least stall giving the information or data to MOM West, so on the eve of trial when all are busy preparing for trial, MOM West would not think to use the April interview and cell phone data it to defeat this line of the prosecutor’s attack.
2. A second reason Tracy’s interview is important, his son had pic of himself holding a “loaded” gun and texted about guns. The report proves Tracy Martin LIED to law enforcement on April 2, 2012; and it is proof of Tracy Martin’s false and fraudulent narrative for 15 months told around the world.
3. If Tracy Martin was being truthful in his statements to the police on April 2, 2012, then it is proof Tracy Martin did not know his son at all. Where this matters: should the state put Martin on the stand to attest his son could not have been the aggressor, at the minimum his April 2 statements will discredit his entire testimony.
In other words, how can Tracy testify how well he knew Trayvon (ergo, the state will argue, he could not have been the aggressor) if Tracy did NOT know about something as significant as his 16-year-old son texting about guns and having pics on his cell phone of his holding a pistol.
This further paints prosecutors in a corner.
IMO they can’t put Tracy Martin on the stand to wax poetic about Trayvon.
Excellent and thanks for sharing this.
Also, the text messages (as far as they can be believed) show that Martin was telling his friends that his mother bought the pistol for him, and was “keeping” it for him until he was older. I think this will be a huge black mark against her when — not if — the prosecution gets into “we were raising him right and he had turned his life around” type of testimony.
I cannot adequately express my sense of relief that the Court of Appeals told the world that what’s going on in the Zimmerman case does not exemplify Florida’s justice system.
In regards to Judge Nelson, the jury in my mind is still out on her. Sometimes I think she is trying to do the right thing and be fair (she did after all refuse to put a gag order on the case, ordered that Zimmerman could get Trayvon Martin’s school records, did not rule inadmissible all that dirt on Trayvon Martin that came to public light last week (that IMO ended the state’s case), did not summarily rule that the State’s experts can testify, set for separate hearing Zimmerman’s sanctions motion, etc., etc.)
But then she makes some bizarre rulings, and chooses not to explain to counsel how she arrived at them.
And IMO she publicly exhibits an animosity toward Zimmerman’s counsel, while patting Bernie on the head.
Here’s her judicial profile.
She won the “Office of the State Attorney Leadership Award” in 2010. I’m kinda not surprised by that. ;)
Thanks! I always enjoy your posts—you present your information in a simplistic way that non-legal eagles (ME!) can better understand the legal “mumbo-jumbo.”
You said: I cannot adequately express my sense of relief that the Court of Appeals told the world that what’s going on in the Zimmerman case does not exemplify Florida’s justice system.
My first thought when I read what the DCA wrote was that they actually knew a helluva lot about this case, so, that was part of my first comments about their decision on various blogs and how it really “bothered” me that they knew so damn much but still did not go as far as I thought they should in allowing Crump to be deposed.
What is the point if the defense is so limited that they will likely get nothing that can be used legally?
The decision was so carefully worded that you have to be a really bad student of reading comprehension to not be able to read between their lines and miss what was NOT said. I thought those things were much more significant than the printed words.
Maybe they are giving Nelson a second chance to be a part of the appellant process but maybe they are also giving her one more last chance to be any kind of judge.
Previous inconsistent decisions indicate to me that she has been trying to please both sides and appear to be fair or is scared of making a really “bad” decision so maybe she now sees that ploy has not worked for her.
If she reads any blogs like this one, she very well knows how she is perceived to be. For certain, she has done a piss poor job of concealing her disdain for the defense. Maybe that will begin to change on Thursday.
First, the DCA fairness goes both ways. They are giving Zimmerman what he is legally entitled to, and not an inch more. This is how it is intended to work. Second, they have given him just enough. They can’t ask Crump what he was thinking. They can ask him what he did, which is plenty. Things like:
Did you stop the recorder to discuss the witness’ answers with her?
Did you discuss the case with the witness before you started recording?
Who wrote the letter to Martin’s mother? Who actually put pen to paper?
Were there any other drafts of that letter?
Who was present in the room? Were any state agents in the room?
When did you give the information to the state?
How did the witness arrive for the interview? Was there anyone else with her?
Your response is why we have blogs with knowledgeable posters and especially those who know the law much better than laymen like me. You and a couple of others have prompted me to look at the decision in a different light and I can now see that a victory of sorts was achieved.
Thanks also for the excellent questions that you proposed.
Unless Nelson appoints “someone”…….and I am not sure who that might be….. to sit in on the depo, Crump is likely to engage in absurd stonewalling tactics. I do not know if Nelson can or would do that, but unless she “referees” the depo herself, Crump is likely to engage in some absurd stonewalling techniques.
IIRC, Nelson mentioned how much time she spent on weekends sitting in on depos and she also said she had plenty of time to do that, when the defense filed a motion requesting another judge to handle discovery. We can see now what she really meant.
Thanks again for your informed reply.
Wow, I just discovered your blog. I’ve been following the case pretty closely and have come to many of the same conclusions, but have never seen any site with so much information and so much insight, , and links to so many other sites. I’ve been jumping around reading your updates , and decided to backtrack to the beginning (I;m up to update 4)
There are some advantages to getting a late start and then reading about the case from the beginning. I have gone back to the start on other sites as well, most notably, CTH and DMan’s place.
I have always learned something new or gained an improved perspective when I have done that. Some little things I missed or read and thought were of little value became larger and more significant issues.
If you are honest, you might also see how wrong we were about quite a few important points.
Enjoy yourself and please also visit Nettles’ blog. Then there’s also Rumpole’s Random Topics plus some newer ones that are excellent:
I hope Mike does not mind my posting these sites and if missed someone, please speak up.
Thanks for the other links, I’ll check them out.
I think you will find that most of “us” follow all of those blogs. “Us” means a group of people who know the facts of the case and also know that George is innocent.
Mike McDaniel said:
Welcome to SMM and I hope you enjoy this series. Let me know if I can be helpful.
Thanks, I’m still trying to catch up. I’ve spent too much time on the lamestream sites, just trying to see how they are spinning .
Sometimes when a victory is realized one is allowed to be mischievous, at least for a few (after) hours. Here is my mischief for the night. I posted this over at Orlando Sentinel (knowing that Crump, Corey, and Bernie read those postings).
The Orlando Sentinel reported: “In a statement, Crump said ‘I am available to be deposed, and the trial should not be delayed in any possible way ….’”
(And I said):
“What a piece of work this guy is. Does he think no one will recall that 8 months ago he said almost the exact same thing!
Yes, it has been 8 months since this OFFICER OF THE COURT LIED to Judge Nelson, that he would sit for his depo.
I would love to have overheard Crump, Jackson, and Parks talking after the Oct. 19 hearing, Crump freaking out, whining no way can he be deposed. The conversation going something like this:
‘Crump: What do I do, oh no, no no, help me guys, what do I do.
Parks: Relax, we will delay this thing, file a few motions and drag this out for months. During that time we can see what BS sticks to the wall, which way the wind is blowing, you can memorize your testimony, and people will forget what you said in court today.
Jackson: Yeah, and the Judge might block your depo if we say “attorney/client privilege” over and over again. We can have Tracy and Sybrina in the gallery looking all bereaved, to where the Judge thinks a ruling against you is a ruling against Tracy and Sybrina.
Crump: You mean we can get Judge Nelson to do that jury nullification kind of thing?
Parks: Yeah man. She might ignore precedent and block your depo on the grounds of “just because.”
Crump: God bless judge nullification rulings.'”
Ha, nice! You know what Crump is doing… it’s not so much bluffing, as it really IS about trying to keep the trial from being delayed. He’s hoping that MOM/West will be in a big rush, and try to depo Crump in the next couple days. At the depo, Crump will of course say as little as possible, and then demand it end, and get up and walk out. MOM/West will go to Nelson and then demand a continuance, because they need more time with Crump (and to follow up on leads he might accidentally provide). She’ll say nope, you had your chance. THAT is what Crump and his buddies are hoping. I have this feeling that MOM and West will NOT fall for it. Sometime over the next couple days, they’ll be talking continuance again… and will remind Nelson the eyes of the DCA are upon her. ;)
Doncha think Nelson might be present for the depo?
Hmm… maybe. But it would sure be a first for her. Remember, they wanted her to do something like that from the start, and she said, “Sure, I got plenty of time. I’m a workaholic, anytime you need me is fine! I can do this in my sleep… at your service!” Or something like that. ;) (It was when MOM originally asked for a special judge to handle just discovery, and Nelson said it wouldn’t be needed.)
But anyway, based on what we saw with how she handled the Dee Dee videotaping episode, the woman seems none too keen to get involved in a depo in real-time. But who knows…
Slothfulness comes to mind.
It wouldn’t be unusual, especially in situations like this where there will be tons of privilege objections and instructions not to answer. If it was federal court, the judge would probably have a special master do it. For this, the judge sitting in telephonically wouldn’t be out of the ordinary. The defense would have to ask for it, though. The state certainly won’t (for the delay reasons above.)
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Mr. Izz said:
Following this official rebuke, would there ever be such a circumstance where a more private conversation (off the record) might take place between the DCA and the judge in this case? Especially considering the volatility and passion involved.
Mike McDaniel said:
Dear Mr. Izz:
A great deal of legal business is done on a friendly basis outside of court. This is particularly true within a city and community of lawyers. They know each other, can anticipate what a given lawyer might go for, and it’s easier and faster this way. The practice of law, outside public employees like prosecutors, is business, and the faster and more efficiently lawyers can do their business, the more money they can make. Lawyers often give each other advice if they are getting out of line.
I don’t know what relationship anyone on the DCA has with Judge Nelson, but it would not be unusual for them to have lawyer friends who have friends who are friends with Nelson, and some messages might be passed that way. This is all a part of the politicking done in any profession, and of course, it would be off the record.
As I said, I’ve no idea of the off the record lines of communication to which Judge Nelson might be privy, but they do exist.
Mr. Izz said:
Ok, thanks! I was just wondering if doing such a thing was legal and could be done in a professional manner. Obviously, we have zero idea if such conversations have taken place. I just wasn’t sure if certain private avenues of communication were open between the two parties or if everything had to be done in an official, and public, capacity. I appreciate your response to my query. I feel I have a little bit better of an understanding with regard to what could go on behind the curtain.
Mike, I enjoy your articles and don’t mean any disrespect but I have to say I’m thoroughly tired of this subject. I have tried to keep up with the issue but I’m approaching burnout on the George Zimmerman case. For the first month or so I held off on coming to an opinion, waiting for more information. After looking at what was available then I had a pretty firm opinion that George was not guilty of anything other than doing the right thing at the wrong time/place (21st century Florida where being white seems to be a crime, at least in the opinion of the NYT.). Since then nothing has come along to make me rethink my position although I have to say the strength of my opinion did suffer a little when the defense money issue came up. I just want to see this case over and done with.
Part of it is the people who give Trayvon a pass on his actions but demand that George be held to a higher standard and part is just information overload. I’ll still read your articles on the subject but I’m going to ignore the comments (or at least I’ll try to ignore the comments.) Keep up the good work, it is appreciated even as I whine about some parts of it.
You said: George was not guilty of anything other than doing the right thing at the wrong time/place.
Wow. . That is sooooo perfect. Thanks.
Mark E said:
Would Crump’s legal filing of the affidavit preclude his ability to invoke the 5th amendment since he has already testified about the matter?
Great question! I don’t think he can Take the Fifth since the affidavit was sworn testimony. In other words, he has waived the protection the Fifth offers.
But that would not stop Crump from doing so. His and Blackwell’s thinking is that there’s no immediate downside to his clamming up. While he might be subject to discipline from the State Bar for Taking the Fifth, and the Court of Appeals would probably want his head on a platter for his wasting their time, he thinks short term, not about something that might happen two years down the road, if at all.
Moreover, like I said before, he probably feels emboldened after Lois Lerner made a statement to the House Oversight Committee (claiming she was innocent, did nothing wrong, etc.) then she Took the Fifth and refused to answer questions.
I am surprised that Blackwell was duped by Crump but i would also be stunned if he stays with the liar. Does he have a duty to report what happened in that depo? I had also read that he was an ethics attorney.
Remember, follow the money, follow the motive to find out who did what and why.
With Blackwell, he decided to tap into that fame trough that everyone is slopping from. Why should others get all the fame.
So who could resist the opportunity to “BE ON TV!!! Call your grandma, I’m gonna be on TV!!!” So Blackwell, he probably had to pay Crump to represent Crump. I mean when is he going to ever see this opportunity again. This happens once in a lifetime.
Mordecai Washington said:
In an earlier post I commented on the improbability of Tracy Martin sending Trayvon to a halfway point to be picked up by Brandy Green when there was a perfectly good bus service available.
The revelations from the mobile phone indicate that Trayvon did in fact travel by bus with the knowledge of Tracy Martin and Sybrina Fulton and that he was met in Orlando by Green on Tuesday 21st February.
There has been a suggestion that Martin invented the story of the halfway handover because he did not want Fulton to think that he had been a neglectful father. But the phone evidence indicates that Fulton was perfectly aware that Trayvon went by bus to Sanford. Therefore it seems that on the 26th of March both Fulton and Martin committed perjury by stating under oath that Martin had driven Trayvon halfway to Sanford. They also incorrectly said that Trayvon had traveled on Wednesday, the 22nd of February.
Note also that attorneys were present. It is not stated exactly who but probably this would be at least Crump and Parks.
It think it unlikely that Fulton and Martin would consider it neglectful to drive or allow another relative to drive Trayvon to the bus station, to exchange text messages en route concerning the journey and to arrange for him to be picked up at the bus station in Orlando by another adult.
They would presumably have consulted with their lawyers about what to say to the state attorneys so it seems likely that they told this story with the advice of their lawyers. This would seem to be evidence not just of perjury but also of subornation of perjury on the part of Crump and co.
Would the defense be entitled to a further deposition of Martin and Fulton and would they be entitled to question Crump about whether he was aware of this when Fulton and Martin were deposed?
With documents like these it is necessary to ask to what question the statement was a reply and why the question was asked. It is also necessary to ask why a question was not asked.
Brandy Green was deposed the next day. She said nothing about going to the halfway point to pick up Trayvon. If she was asked she gave the wrong answer which was not recorded or the question was not asked. In either case the implication might be that the state was complicit in an agreement between Fulton, Martin and their attorneys to present a false narrative about Trayvon’s journey to Sanford.
But why was this narrative necessary in the first place? The idea that Martin wanted Fulton to think he was a concerned parent can be laid aside. It is possible that the processes by which Trayvon was suspended from school and kept out of the criminal justice system required that he not be allowed to travel except in the company of an adult. This seems plausible but would require confirmation.
It could also be that something happened on the bus and Trayvon needed to be distanced from it. There is the tweet by Trayvon’s cousin about swinging on a bus driver. One of this messages says you “shuda” been on the bus. It is possible that Trayvon had threatened or assaulted another passenger or the driver but there is no clear evidence from the text messages.
In this deposition Fulton said that Trayvon lived with her. That would appear from the text messages to be another falsehood. She also said that the last time she saw Trayvon was on the Wednesday before the shooting, that is the 22nd of February.
One week later Martin was interviewed again and this time he advised that the trip to Sanford had taken place on Tuesday, the 21st not on Wednesday, the 22nd. The evidence of the text messages is that this was the correct date. Also, on April 2nd, Fulton indicated that it was on the Tuesday that she last saw Trayvon.
What had happened to remind Martin and Fulton of the correct date of the journey? It is worth noting that the deposition of April 2nd was the one where Martin was asked whether Trayvon was interested in guns.
Also on April 2nd, Fulton advised that Trayvon was right handed. Why would the prosecution want to know this? Would it have something to do with the photo of a hand holding a gun?
It is a plausible hypothesis that the state had now accessed the contents of Trayvon’s phone and was alerted to the correct date of the journey and was aware of the photo of a gun. If so, it would seem that the state acquired knowledge of the contents of Trayvon’s phone between March 26th and April 2nd. It would require further questioning to determine whether this is correct.
If the state did have know about the contents of Trayvon’s phone as early as March 2012 it would seem that this is evidence of serious misconduct.
This is a brilliant detailed analysis. You are absolutely correct in your statements about the dates and I, too, have always wondered why they all told so many seemingly unnecessary lies starting with who was at Brandy’s condo on 2/26 as well as what times did everyone come and go, and oh yeah, especially during and after the fight when cops occupied the area like an invasion and questioned everyone nearby except for Chad and whoever else was there.
You are clearly informed and intelligent and guilty as hell of independent critical thinking. I would love to see your list of things done and said by Crump and his chumps as well as Trayvon’s parents and other relatives and close acquaintances…like Chad.. for which they COULD be criminally charged.
I bet you have such a list for the State of Florida, too.
“You said: If the state did have (sic) know about the contents of Trayvon’s phone as early as March 2012 it would seem that this is evidence of serious misconduct.”
I thought that had been verified as being true but I might be wrong.
I am not trying to put you to work but your knowledge has “invited” a request for the lists.
Thanks for such a great post.
I agree with It’sMichael. He most likely has waived his 5th Amendment privilege, and likely his attorney-client privilege relating to that interview also. Good catch.
NevadaSteve said: June 5, 2013 at 22:16 Mike, I enjoy your articles and don’t mean any disrespect but I have to say I’m thoroughly tired of this subject….”
That is what Crump was counting on so he could make millions off the back of the dead and buried Trayvon Martin, that everyone would tire of the case, George Zimmerman would have by now pleaded guilty, and the world carried on.
Actually Crump’s con backfired. Aside from everything else (that I won’t discuss here), it is the Trayvon Martin supporters whose ranks have thinned, and George Zimmerman’s supporters have stayed in the war doing battle alongside George.
Proof of this “phenomena” is evident in that there was a rally for Trayvon Martin last week. Crump, et al. told the media that thousands would be in attendance. I heard the count was about 300. In contrast, MOM West said they were out of money for payment of litigation costs. They publicized that in one day the Fund raised $12,000 and about $80,000 over a few days.
And I have noticed that on the Net (blogs, media sites, etc.) scholarship remains robust and in Zimmerman’s favor, while Trayvonites appear to be reenacting Custer’s Last Stand.
Anyway, I figure someone up there likes George (that be the Zimmerman George, not Custer). While some tire of the case, that’s precisely when his supporters need to hang in there and keep on the offense.
You can go AWOL. I promise we won’t send the MPs after you. ;)
Interesting CRIMINAL conduct coming out at the sanctions motion part of the hearing today, June 5.
IMO Bernie looked really bad. He was asking questions, but was really testifying without taking the stand.
Corey is in big trouble, IMO. Looks like she has possibly committed federal crimes related to email retention. (More on that later.)
And again IMO, MOM alluded (via question to the SA IT guy) that the SA had the content of Trayvon Martin’s phone back in March 2012 (again, that’s 2012, NOT 2013).
This falls in line with my discussion and post about the SA memo documenting de la Rionda’s April 2, 2012, interview of Tracy Martin, when he asked a lot of questions about guns. (And remember, the memo or “police report” is a summary of conversations, so Bernie’s questions to Tracy Martin about guns was a lot more detailed than what’s mentioned in the memo.
Think about it. When the phone was recovered at the scene it looked relatively intact. It did not appear to have damage. While it may have been locked (I’m not too sure Trayvon Martin would be the type to lock his phone. Besides, if one is on the phone as often as he allegedly was, frequent talkers don’t use even the most rudimentary lock features, e.g., the auto lock screen that requires a pattern swipe or number entry to unlock it.)
The fact is, very few people lock their phones. And fewer than about 00000001 % use Android’s Encrypt feature (where a password is required to turn on the phone, meaning it does not even get into Android). Add to that that Trayvon was a teen, the last kind of user who thinks about securing his phone, his phone was easily accessed by police. (And even if the phone was damaged, if that damage occurs when the phone is NOT being used, the firmware remains intact with the data.)
Bottom line, Trayvon Martin’s phone could have been accessed by a grade school hacker.
So I still say it is going to come out that Corey, Bernie, and the SA office BEFORE they charged Zimmerman knew about the content of Trayvon Martin’s cell phone, but they ignored that to charge Zimmerman, refused to reveal the information to MOM, and later MOM West, and when they gave it in April, it was hidden in an unreadable file. (It got into evidence that when Bernie said words to the effect “I guess we will have to turn over the raw data file to the defense,” he asked the SA IT guy “What does the Cell Brite software cost?” to which the IT guy answered “about $8,000.”
THIS IS BIG FOLKS! While Judge Nelson may do everything she can to protect her friend Corey, law enforcement cannot ignore this.
This is just another nail in Crump, Corey’s, Jackson’s and Bernie’s coffin post Zimmerman trial.
And they have not even asked anyone (and probably won’t in this hearing), did the SA ask Crump about what the cell phone data revealed? I bet they did, to give Crump a heads up. Which also makes even more evident that the settlement from the HOA was procured by fraud.
2:30 PM EDT June 6, 2013 Judge Nelson’s metamorphosis into Judge Lester is complete!
MOM West were just about to call Bernie to the stand, Judge Nelson ANGRILY continued the sanctions motion until AFTER trial.
She is from the dark side.
(And obviously the C of A reversing her, as I predicted, really pissed her off, at MOM West.)
Note: MOM was still talking and she stormed off the bench. MOM had a glare that would melt ice. Maybe a motion for continuance (will be denied), followed by a motion for her recusal (denied) followed by a writ?
Clearly, Judge Nelson has the vapors. Ten minute recess only fifty minutes into the afternoon session? /sarcasm
Will C of A yank her off? I wonder if they will do that without O’Mara’s request? She really should not be running this trial.
Maybe it’s just me, but I would think that the fact that the FBI is not willing to provide an expert voice analyst to bolster the prosecution’s case is a BIG blow to their case. I mean, if they (the FBI) had a bias in this trial, I would think it would be pro-prosecution. After all, they are a law enforcement agency and they tend to work with prosecutors. Further, they are part of the DOJ, which is part of the Executive Branch of our government – and didn’t the head of the Executive Branch of our government say something about Trayvon Martin looking like the son he never had?
I am flabbergasted! The MOM West call as Zimmerman’s voice expert THE FRIGGIN HEAD OF THE FBI “FORENSIC AUDIO DIVISION” who analyzed the 911 screaming, on behalf of the FL FBI who was trying to nail Zimmerman.
And that FBI big shot is on the stand testifying on Zimmerman’s behalf.
It does not get any weirder than that (especially since I’m sure MOM West will point out that it was Crump who got the FBI involved.
So fast forward to June 2013, in effect Crump (via Bernie) is going to impeach the FBI agent that Crump requested to help him nail Zimmerman.
And don’t forget, check minute marker 02:24 here:
Crump acknowledged the FBI has the best equipment in the United States.
Note to MOM West: Please call Crump to testify on Zimmerman’s behalf, that he said on October 19 that this FBI agent (who is now Zimmerman’s expert) is the only expert to whom we should be listening. (pun intended). HA HA HA HA HA
P.s. As the icing on top, the FBI expert testified that any expert saying can ID who is screaming on the 911 audio, and what is being said, that such results would be, and I quote: “DISTURBING.”
Update: After court recessed Judge Nelson called all counsel into chambers. I bet she wants to dissuade MOM West from filing a writ.
I am wondering if the DC of A told her to get all counsel into chambers and is now on speaker phone talking to all of them. What I would give to be a fly on the wall in that chambers.
Could be. But even if not, I think it’s a virtual certainty that they were watching today. And it’s also a virtual certainty that they’re not a bit happy with “Judge” Nelson.
“Grant a continuance, and we’ll THINK about not asking for your recusal, Judge Nelson.”
I suspect the Court of Appeals is fully aware of these case “highlights” and timeline from the Writ proceeding:
– (March 2012) Crump communicating with the FBI to request they investigate Zimmerman for a race-based hate crime.
– (April 2012) The State Attorney (including yella belly Bernie) and FDLE working with the FBI to attempt nailing Zimmerman for a hate crime.
– (July 2012) The FBI announcing it did not find any evidence to support charging Zimmerman with a hate crime.
– (May 2013) FBI management in Washington, D.C., giving its blessing for one of its senior agents, who worked on the Zimmerman investigation, to testify on behalf of George Zimmerman.
– (June 6, 2013) The FBI agent and head of the forensic audio division, who participated in the attempt to nail Zimmerman for a hate crime, is now on the stand and testifying on Zimmerman’s behalf.
– (June 6, 2013) Angela Corey-Nifong’s Assistant State Attorneys attacking and attempting to discredit the FBI agent who was testifying on the stand, and a year earlier had been helping them to attempt nailing Zimmerman.
(June 6, 2013) A recently-resigned state attorney who worked for Corey taking the stand and testifying against her, and same for her IT guy.
Note: If I saw the above in the movies I would say “that stuff happens only in the movies.”
Bonus Comment: I don’t think FBI agents are allowed to accept money to testify, but can charge travel costs, etc. So yella belly Bernie’s experts will testify as follows:
YB Bernie: And how much have you charged (the jury, who are taxpayers too) for testifying today?
Expert: $10,000 excluding first class travel.
West to FBI Agent: And what have you charged for your appearance today?
Agent: Oh, nothing. Bureau policy is that we are forbidden to charge fees to appear.
West: But what about your expenses?
Agent: Oh, well that Mr. Zimmerman has to pay. I have a room at Motel 6, and I flew coach on the red eye.
Where’s the “Like” button?
Here’s the entire FBI agent expert’s testimony. Very, very educational.
Here is Judge Nelson going postal, shutting down the sanctions hearing (and yella belly Bernie refusing to take the stand – after he just got done acerbically questioning Don West).
Thank you. My feed cut out right after Bernie said no. From what I could tell, she wasn’t really paying any attention to what the DC of A said to her. If she had, she would have Bernie sworn in. She may think she has saved Bernie, but I think she just got kicked off this case and there is a serious question as to her losing her new civil court appointment.
I am uploading the other parts of the sanctions hearing and will provide the links in here.
Make sure to watch that FBI senior scientist/expert’s testimony. (He did quite well explaining complex material).
Noteworthy is that they did not take a break during his almost two hours on the stand. IMO that was because his testimony was extremely interesting. And I got the feeling Judge Nelson was using this guy to educate herself. I know I was.
Take a look at when West hands Judge Nelson Dr. Nakasone’s Curriculum Vitæ. When she saw “Current employer: FBI Quantico, VA” I she looked floored.
Anyone have a complete list of witnesses in this case who would normally testify for the state? I am referring to SPD officers to Witness #8 and all those in between.
Here’s the other videos.
Part 2 sanctions hearing, IT Director Ben Kruidbos
Part 3 Sanctions Motion – Don West’s brilliant testimony. Good presentation by MOM. (I think these two guys know each other and are in cahoots.)
Note: IMO these guys looked at this as another opportunity to ring the bell, to mention once again all the dirt on Trayvon Martin.
Part 1 Sanctions Motion – former Asst. State Attorney Wesley White.
This is the most “entertaining” video, I thought Bernie and Wesley were going to come to blows.
Basically Wesley White is there to substantiate O’Mara and West’s allegation that BLDR has slowed rolled and did his best to obfuscate exculpatory evidence for the defense. I wonder if Bernie is going to be sitting in jail for any length of time.
What is bothering me most about this cross examination, the one accused of unethical behavior is the one questioning the witness. Talk about a conflict of interest.
OMFG – Judge Nelson tells MOM West to “strip” in court. More later.
I’ll post all the Frye stuff here. By the way, the Parties agreed that since MOM West have two additional experts to put on the stand to challenge the State’s experts (Reich and Owen), they will hold court on Saturday, June 8, 9:30 am EDT
You might be wondering how they can do all this with trial starting on Monday.
Well, trial does NOT really start on Monday. On Monday jury selection starts. Judge Nelson sent out 500 summons. They need to seat 6 jurors and 4 (?) alternates.
The Clerk (who administrates jury selection) said she hopes jury selection will be done in one week (5 days). MOM estimated it will take three weeks.
I’ll meet in the middle and assume the entire process takes two weeks. That means opening statements will commence June 24. That’s when I consider trial to start.
Can you tell me, with any degree of certainty, that MOM will be allowed to ask all of those questions of every single prospective juror that he brought up in a hearing about that survey that indicated the majority did not believe he could get a fair trial?
The hearing was on the same day the OS released the survey.
Some said, yes, but I am looking for another opinion. They were all perfectly legitimate questions and neither BLDR nor Nelson objected or even made a single comment.
Part 1 – Here is prosecution “purported” expert Tom Own – they want him to say the screaming on the 911 audio is not Zimmerman. Actually, we are dealing with two homicides now, the second being a “killing” of this expert by Attorney Don West.
Note: Pay attention to where at the beginning of this video where Tom Owen tells some of his Curriculum Vitæ. He says he is in forensic audio and has “been at this for 50 years.” Now when it is Don West’s turn to cross-examine Owen, pay close attention to Owen’s testimony what he includes as part of his 50 years experience in audio forensics.
Don West did a fantastic job at cross examination of this purported expert. Lawyers and students in trial practice, pay attention, this is how you tear down an expert to have him declared a kook by the Judge after a Frye hearing.
What we found out:
– Owen is not a scientist. His college degree from 1969 was in history.
– He bases his “50 years of dealing in audio” to include when he made music files at the age of 15.
– He has a financial interest in all this.
– Back when the Orlando Sentinel contacted him about the Trayvon Martin case, they paid him to come up with a result, basically they were looking for someone to say that it was Trayvon Martin screaming.
– If he said that it was George Zimmerman or that he would not be able to detect who it was, the Orlando Sentinel would have moved on to find another expert to say what it wanted.
– He cut an agreement with the Russian developers of the analysis software he used on George Zimmerman’s voice, that he would get a commission for every U.S. sale of “Easy Voice” software, which retails for $5,000.
– Owen does not sell the software, he simply markets it by getting the word out there. So Trayvon Martin and George Zimmerman were a great opportunity to do that.
– To sell Easy Voice Owen made sure when discussing the Trayvon Martin case to mention Easy Voice software.
– Owen laments that his marketing effort did not work, the company realized few sales despite Owen getting into the news and media on the case.
– Owen does not know how the software works. In fact, he contacted the company when it was in beta suggesting to the developer that it make the program easier to use, suggesting a Windows interface, which the company did.
– Arguably, seeing that Easy Voice was $5,000, a cash-strapped Owen came up with his Windows interface idea and commission relationship so he could get the software for free.
– The software requires a minimum of 16 seconds of speech clean, isolated speech to attempt an analysis.
– When a pop-up message appeared on Easy Voice that there were not enough words or time for the program to work, that was the first time Own had seen that. So he looped the sample (doubled up the words) and fed that into the program, this to fool the software into performing a voice identification.
Owen’s “methodology” would be like after the toaster is done toasting, forcefully holding down the lever because you like your toast smoking and burnt.
– Owen testified that this doubling up was not a generally accepted methodology in the scientific community to get a sufficient sized sample.
(I’ll continue this later.)
Pt. 2 – Zimmerman v. Martin – Frye Hearing – State’s Expert Tom Owen.
Pt. 1 – Zimmerman v. Martin – Dr. Reich – Prosecution Audio Expert
The beginning of this is hilarious. Reich: “Huh, I can’t hear you? What? Huh? What did you say sonny?”
do you have a blog where you write more about this case?
I will be “blogging” mostly on YouTube now. You can check out my videos there. Here’s a link to one:
Pt. 2 – Zimmerman v. Martin – Dr. Reich – Frye Hearing – Prosecution Audio Expert
thank you for all of the work and commentary on this case.
I am hanging out to see your comments on this stupid Dr. Reich.
A bit of inspiration at this late hour.
Judge Nelson should not allow these experts to tesitify because that will have the net effect of these experts opining on Zimmerman’s ultimate guilt. Considering the unsoundness of the State’s experts that should not be allowed.
(This is not even getting into the merits of these experts’ opinions, where Owen and Reich are contradicting themselves and each other on methodology.
On another front (a separate line of attack):
Foundationally, the Court should take judicial notice of its own files. In the record is evidence that in the police investigation Zimmerman was administered a voice stress test. Zimmerman passed with flying colors.
The State obviously did NOT want the CVSA RESULTS admitted at trial, so Bernie filed a Motion in Limine to prohibit Zimmerman offering into evidence the CVSA RESULTS. (That Motion was granted.)
In that Motion Bernie argues and cited cases that held polygraph RESULTS, CVSA RESULTS, electronic RESULTS, or scientific RESULTS are inadmissible as evidence at trial. Those cases, and the State’s arguments regarding scientific RESULTS being inadmissible, apply to experts Owen, Reich, or any electronic RESULTS expert the State might offer up..
The bottom line, on a case this serious, a murder prosecution, the State cannot in a May 23, 2013, Motion in Limine argue that Zimmerman’s voice stress RESULTS are inamissible at trial (on the grounds that such “evidence” will prejudice the State’s case), but then take a 180 degree contradictory position a few weeks later for purposes of admitting its audio experts’ RESULTS.
The fact is, these experts opinions are based on telling the jury about their RESULTS from machines and software, the same as an expert might testify about polygraph RESULTS, or Zimmerman could have sought to have his voice stress tests RESULTS admitted.
Bernie argued that the RESULTS of his (passing) CVSA test are inadmissible.
OK, fine. Zimmerman should ask for judicial notice of the State’s Motion in Limine and concur with Bernie’s citation to Florida Supreme Court cases therein.
As a matter of law, Bernie’s cases support a ruling that these experts opinions, that are electronic-based RESULTS, are inadmissible at trial.
And it is of no moment that the State could argue Reich he is simply rendering an opinion on what his ears have told him. The fact is, the sample he listened to was the product of computer software and machines cleaning up and . He is merely relabeling electronic RESULTS. That’s no different than the CVSA or polygraph operator taking the stand to opine on Zimmerman’s truthfulness after the operator looked at what the CVSA or polygraph spit out.
Additionally, Reich testified facts that indicate he spent hundreds of hours on the Net participating in the debate (was it Zimmerman or Trayvon Martin screaming) and he listened to the 911 audio thousands of times on the Net and after modifying it with his software. That means his opinion is an electronic-based RESULT.
Click to access motioninliminestatecvsa.pdf
The cases Bernie cited.
Click to access duestmilpolygraphbradyetc.pdf
Now on the stand Peter French in the UK. Who is making the State’s experts look like loons. I hope they ask:
“Dr. did you hear any bible verses shouted by George Zimmerman, like Jules in Pulp Fiction?”
“There’s someone in your case named Pulp Fiction?”
Posting Dr. French as I type. Link later. Here’s my initial commentary in that video.
Dr. French is an expert Zimmerman had testify to slice and dice (purported) expert Tom Owen and Dr. Reich.
Bottom line first, if Judge Nelson does not exclude these experts based on what the FBI (Dr. Nakasone) and Dr. French have testified (both said that Reich / Owen methodologies on the 911 audio analysis were “DISTURBING”) then the Judge does NOT understand the science and issues, or the fix is in.
And if Judge Nelson does not keep the State’s experts out she will be reversed. It is so obvious that this is not even close to being what’s called a “battle of the experts” that the only conclusion the Court of Appeals will order a retrial and different Judge.
By the way, the state’s cross of Dr. French was tepid at best.
Bonus Comment: Yes, Judge Nelson realizes that other than DeeDee this is the only evidence the State has to put on some semblance of a case. So she could allow the experts thinking “let the jury sort it out.”
Michael been following your comments on the case for a long time, I would like to invite you to this site http://annettekblog.wordpress.com/, and have you post there as well.
I have read your comments from the CTH to Txantimedia and now here, it would be great if you could join us at Nettles site. Thanks, for your consideration and great legal insight.
I’ll take a look since I am not in the mood to discuss when to use “who” and “whom.”
Thanks in advance, if you should find it to liking, even better. Regardless where you comments are always welcome and insightful.
pinecone (minpin) said:
Mike McDaniel- completely and totally off topic sorry. Can you please, as an English teacher, explain to the audience when it is proper to use the terms “who” and “whom”? I’ve been reading so many comments that have completely exchanged the term “whom” with “who.” Maybe another educational article?
Mike McDaniel said:
To whom do you think you’re speaking?! Actually, this is a sticky one, even between English teachers. Try this site for a good general discussion: http://www.betterwritingskills.com/tip-w023.html
For most common usage, “who” has become the all-purpose word. There really isn’t a hard and fast rule that everyone agrees upon. We’ve had some good arguments over this issue in English department meetings, which should tell you that you’re glad you’re not an English teacher.
Pfffft! My very first comment here, and you beat me to it, Mike! ;-)
To whom am I speaking?
Whom am I speaking to?
Who am I speaking to?
i know some who would say: Who you is?
I like traditional English, not English that has been battered and bastardized over time with the result being those who speak the King’s English, like our old friend William F. Buckley, are the ones WHO now sound funny.
I traveled enough to London to actually pick up their speech and, for the most part, simply loved the British. Most of them speak in grammatically correct complete sentences that are as precise as the English language permits .
pinecone (minpin) said:
Thank you for your reply Mike, and also to those below who replied. In other words it depends on what the definition of is is. LOL
Fair warning, Minpin. There’ll be times when I’m sure you wanna slap me around a bit. Because I have a thing about “you” vs “one”. ;) I mean, I KNOW “one” is supposed to be used at times…. such as “When one notices it’s a little bit drippin’ water, it might be wise to take cover under a mail thing.” But me?… I’ll use “you” every day of the week. “When you notice it’s….” ;)
(Of course I’m just messing with you… you know that ;)
Thank you, pinecone! Wonderful idea. I’ll keep my fingers crossed for a whole series. We all make mistakes, of course, and typos. I certainly make a lot of both, so neither usually even register very much with me. However, when it seems deliberate, or is often repeated, it can be very grating, iykwimaittyd. Kind of like that person we all seem to run across in life who has a penchant for 50 cent words but won’t bother to look up their meanings so they can use them correctly. :)
Also, thanks, Mike McDaniel, for all of the insight and reliable information on this and other topics.
And this list wouldn’t be complete without thanks to ItsMichaelNotMike. Like others, I always enjoy and look forward to your commentary on Mike’s articles.
My Dad used to get mad at me for “showing off” and would yell at me for using those “SEVENTY FIVE CENT” words. There is a difference, you know.
I could list a couple of dozen but one that baffles is graduated high school. I, personally graduated FROM high school and college.
Who is a subject. Whom is an object. Both are pronouns. I love the grammar girl. She teaches the same grammar I was taught in school in SC. Mike may even know her.
There’s a very simple way to do that, pinecone. (1) Break the sentence apart into 2 smaller sentences, shuffling the words around (if necessary) in the who/whom segment so that they form a sentence. (More complex sentences will, of course, break down into more than 2 smaller sentences.) (2) Substitute he/him (or she/her) for who/whom. You’ll immediately see which one is correct. For example:
TM is the person who/whom attacked GZ.>>TM is the person. He attacked GZ.>>TM is the person who attacked GZ.
TM is the person who/whom GZ was attacked by.>>TM is the person. GM was attacked by him.>>TM is the person whom GZ was attacked by (or, more properly, TM is the person by whom GZ was attacked).
TM is the person who/whom the BGI claim GZ pursued.>>TM is the person. The BGI claim GZ pursued him.
Looking upthread for samples, we have:
Crump is the only person who can reveal information about many aspects of that interview.>>Crump is the only person. He can reveal information about many aspects of that interview.
Another indicator that Bondi, who is reportedly a friend of Benjamin Crump, is deeply politically involved is her statement of “fact”.>>Another indicator that Bondi is deeply politically involved is her statement of “fact”. She is reportedly a friend of Benjamin Crump.
Crump conducted the interview in the presence of two media representatives who subsequently aired portions of the interview on national television.>>Crump conducted the interview in the presence of two media representatives . They subsequently aired portions of the interview on national television.
Remember, follow the money, follow the motive to find out who did what and why.>>Remember, follow the money, follow the motive to find out what she did and why.
He said on October 19 that this FBI agent (who is now Zimmerman’s expert) is the only expert to whom we should be listening.>>He said on October 19 that this FBI agent (he is now Zimmerman’s expert) is the only expert. We should be listening to him.
He would not be able to detect who it was.>>He would not be able to detect. It was she. >>CORRECT usage. (I’m assuming you remember what a special little verb “to be” is.) Compare this with a variant that doesn’t appear on this thread: He would not be able to detect who TM attacked.>>He would not be able to detect. TM attacked he.>>INCORRECT usage.
Interestingly every single usage of who and whom on this thread has been correct. There was, however, a poster on another recent thread here who used “whom” incorrectly every single time – but heck, it was an anti-GZ poster, so…in deference to Mike, I’ll bite my tongue and let you finish that sentence yourself, LOL.
BTW, Mike, I’ve been following this blog for months now and have been consistently impressed by the depth and breadth of your insight into this case as well as the generally civil level of discussion.
That person seems to never use the word “who” instead of vice-versa, which seems much more common in my experience. But then again, I ran into a really good sale on commas many years ago and am still trying to use them up. :)
We rarely see semicolons any longer, and …….. is often used in place of a comma. Hold the commas until they become scarce.
Could you spare some sarcasm symbols? You will have to pay $1.99 for them but who would know what the symbol means. I am not kidding.
“Do not adjust your sets,.. we’ll be broadcasting this entire trial in black and white.”
Yuck, on the eve of the Zimmerman trial to be discussing “who” and “whom.” No thanks.
(I duly note, it is not my blog. But this seemed better discussed in Mike’s article “Grammar Attacks.”)
Take care all, no matter “whom” or “who” you are.
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