Why haven’t we seen any reciprocal discovery? I’d like to see what the defense has turned over to the State. Do we not get to see reciprocal discovery?
The Defense has expert witness’ that they would like to call via video conferencing at the next hearing, and filed a motion for approval. Does the Judge approve or deny this motion before the next hearing date or wait and tell them during the hearing when she gets to that motion? I haven’t even seen a motion in reply from the State yet, so maybe they have no objections to this. I don’t see how they don’t considering the defense did not name these experts, unless they did through emails or something.
Let’s not place the cart before the horse. Judge Nelson first has to decide whether to grant the defense motion for a Frye hearing. She will decide that motion at the hearing on May 28th.
I do not believe she will grant the motion because O’Mara has not made a proper showing. He needs affidavits from experts asserting that the technology/methodology used by the prosecution’s experts is not generally accepted in the relevant scientific community (i.e., audiologists). He hasn’t done that.
If she were to grant the motion, however, I do not believe she would conduct it via video conferencing. Cross examining someone on a video screen is not the same as cross examining them in person when the witness is not on his own turf with support at the ready off camera. I do not believe Bernie de la Rionda would agree to O’Mara’s request. I certainly would object if I were the prosecutor. I do not believe Judge Nelson would grant O’Mara’s request over de la Rionda’s objection.
O’Mara appears to be caught up in a money trap caused by frivolous expenditures of internet contributions and now he cannot afford experts.
Too bad, so sad.
The answer, as I have been suggesting for several months, is to attempt to get the defendant declared indigent so that the court will pay for the experts, but O’Mara and his client do not want to go there.
I suspect the reason is they do not want the internet fund shut down and turned over to the Court for reimbursement.
Greed and stupidity are quite the double whammy.
They have only themselves to blame.
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I doubt that the defense has retained an expert who will testify that the defendant uttered the shriek that ended with the gunshot for the simple reason that everyone in their profession in the world would thereafter know they had committed perjury.
The defense has had one year to find and endorse an expert witness. Yet they have not done so.
Mark O’Mara claims that he has an expert who disagrees with Dr. Reich, but he has not identified the expert or produced a copy of the expert’s report.
I think he is bluffing and I am calling his bluff.
Who is your expert, Mr. O’Mara?
Let’s see his Curriculum Vitae and written report.
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To Frye or not to Frye,
that is the question.
Whether ’tis nobler in the mind
to suffer the slings and arrows
of outrageous fortune
or to take arms against
a sea of troubles
and by opposing end them.
Hamlet, Act III, by William Shakespeare
Good morning:
I write today to explain the Frye Rule and Mark O’Mara’s latest strategic mistake. Let’s begin with the mistake.
If Judge Nelson grants his motion, there will not be any testimony by an expert witness regarding the identity of the person who uttered the terrified shriek. That will not help the defense because that intense, high-pitched, and prolonged nightmarish shriek of sheer terror ends abruptly with the fatal gunshot to the heart.
Just as it does not take a weatherman to tell which direction the wind blows, no juror is going to have any difficulty figuring out that the person who uttered that inhuman shriek is the victim of that gunshot. No juror is going to believe that the person armed with the gun; who pulled it out of a holster; who extended his arm; who aimed the gun taking care to make sure his left hand was out of the way; and who pulled the trigger at point-blank range is the person who screamed.
I am certain the prosecutor will not forget to remind the jury that the defendant told the police that he kept screaming for help after the shot because he thought he missed Trayvon Martin.
Apparently, Mark O’Mara has not listened to that agonizing shriek because, if he had listened to it, he never would have filed this ridiculous motion that can only hurt his client, if Judge Nelson grants it, since the absence of expert testimony would simplify identifying Trayvon as the source of the shriek while also disproving the defendant’s claim that Trayvon was beating him to death and attempting to smother him when he fired the fatal shot.
Breath. Taking. Stupidity.
Now, let’s take a look at the Frye-hearing request.
Every once in awhile someone develops a new theory or a new way of performing some task (i.e., a new methodology). A lawyer finds out about it and decides he wants to apply that new theory or methodology to win a case. Opposing counsel says, “Not so fast, pal. Not without a Frye hearing.”
A Frye hearing is a pretrial hearing to determine if evidence obtained pursuant to a new theory or methodology should be admitted or excluded during the trial. Think of it as a judicial screening device to exclude potentially inaccurate and unreliable evidence based on a new untested theory or methodology.
A single assignment of error is presented for our consideration. In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant. The test is described as the systolic blood pressure deception test. It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject’s mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.
In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.
Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained. The offer was objected to by counsel for the government, and the court sustained the objection. Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury. This also was denied.
Judge Van Orsdell then proceeded to define the new rule:
The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.
Numerous cases are cited in support of this rule. Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
(Emphasis supplied)
The issue Judge Nelson would have to decide, assuming she decides to hold a Frye hearing, is whether the methodologies used by the state’s experts are generally accepted by audiologists as capable of producing accurate and reliable results.
The Frye test has been described as a counting-heads test because it does not require the judge to understand the theory or methodology at issue. The judge need only count the heads of the experts in the particular field and decide whether they generally accept the methodology.
As I recall, two experts used different methodologies to compare the shriek to a voice exemplar provided by the defendant. One methodology has been used for many years and the other one, which was developed recently, involves the use of a software program.
Both experts have excluded the defendant as the source of the scream.
Since the first method has been used for many years, it probably has survived a Frye challenge in Florida.
The second method may be too new to have been challenged at a Frye hearing.
The glaring, and I believe fatal, omission in O’Mara’s motion for a Frye hearing is the absence of any supporting affidavits from experts in audiology that one or both of the methodologies used are not generally accepted by audiologists as capable of producing accurate and reliable results.
Nobody gives a damn about what the non-expert lawyer thinks. He is not qualified to express an opinion about general acceptance of these methodologies.
Therefore, I would deny his motion for a Frye hearing.
Notice that regardless whether Judge Nelson grants or denies O’Mara’s motion, the State will still be required to lay a proper foundation for each of its expert audiologists at trial pursuant to Evidence Rule 702 that the witness is a duly qualified expert in the field and the result obtained using the particular methodology in question will assist the jury to decide who is screaming.
In conclusion, if I were the prosecutor, I would be inclined to try the case without putting on any audiologists during my case-in-chief for the simple reason that I do not believe they are necessary. This is another illustration of the KISS rule.
BTW, all that sparring about whether Tracy Martin could identify Trayvon as the source of the shriek does not matter.
Hardly anyone ever shrieks like that and lives to tell about it, so it stands to reason that no one, including his father, ever heard Trayvon utter a shriek like that. This may explain why it may not be possible for any expert to positively identify the source of the shriek without considering the circumstances or context that produced it.
That’s why it sounds inhuman.
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Now that W8 (Dee Dee) has apparently admitted during the defense deposition on March 13th that she lied when she told Benjamin Crump during a telephone interview and later confirmed to BDLR that she did not go to Trayvon Martin’s funeral because she was sick and went to a hospital, the inevitable question is:
How might this affect the trial?
First, do not expect to see her charged with perjury because BDLR’s question was ambiguous (i.e., went to a hospital or someplace) and her answer was not material (i.e., important enough to affect the outcome of the trial).
Second, let’s take a look at how this admission might come out at trial.
BDLR would ask her if she attended the wake or the funeral and she would answer, “No.”
BDLR would then ask her why not and she probably would answer that she was too upset and could not handle it.
Assuming for the sake of argument that the prosecution either did not move in limine (i.e., before the trial begins) to prohibit the defense from pursuing this line of inquiry pursuant to Rule 608(b) or if it did, Judge Nelson denied the motion, BDLR would have the option to end that line of inquiry (i.e., permitting the defense to bring it out on cross) or to proceed further and reveal her lie).
Any experienced prosecutor, and BDLR is experienced, would elect to reveal her lie in the least damaging manner possible rather than allow the defense to bring it out on cross in the most damaging manner possible.
This is how it might work:
BDLR: Do you recall Benjamin Crump interviewing you by phone in March of last year regarding your cell phone conversations with Trayvon before the shooting?
DD: Yes.
BDLR: Do you recall him asking you, if you went to Trayvon’s wake and funeral?
DD: Yes.
BDLR: What, if anything did you tell him?
DD: I told him that I did not go to either one.
BDLR: Was that truth?
DD: Yes.
BDLR: Did he ask why you did not go the funeral and the wake?
DD: Yes.
BDLR: What did you tell him?
DD: I told him I was sick and went to the hospital.
BDLR: Was that the truth?
DD: No.
BDLR: What was the truth?
DD: I was too upset and could not handle it.
BDLR: Why didn’t you tell him that?
DD: I did not want to admit to his mother that I was not strong enough to be there for her.
BDLR: Are you referring to Sybrina Fulton?
DD: Yes.
BDLR: Was Trayvon’s mother present when Mr. Crump interviewed you?
DD: Yes, she was in Mr. Crump’s office listening over the speaker phone.
BDLR: How did you know that?
DD: Mr. Crump introduced her and she said, “Hello.”
BDLR: Did there come a later time when I interviewed you in person?
DD: Yes.
BDLR: Do you recall when that was?
DD: I think it was about a month later.
BDLR: Was Trayvon’s mother present when I interviewed you?
DD: Yes, she gave me a ride to the office where you interviewed me and she sat next to me the whole time.
BDLR: Did you swear to tell the truth and nothing but the truth during the interview?
DD: Yes.
BDLR: Did I ask you if you went to the funeral and the wake?
DD: Yes.
BDLR: What did you say?
DD: I lied and told you that my blood pressure was very high and I went to the hospital instead.
BDLR: Do you suffer from high blood pressure?
DD: Yes.
BDLR: Why did you lie to me?
DD: I did not want to admit to Trayvon’s mother that I could not deal with what happened to Trayvon. I could not handle seeing him dead or in a casket, so I lied to her and to Mr. Crump.
BDLR: Are you sorry that you lied?
DD: Yes.
BDLR: Have you apologized to Trayvon’s mom and dad.
DD: Yes.
BDLR: Did you love Trayvon?
DD: Yes, I still do.
BDLR: Do you miss him?
DD: Yes, very much.
BDLR: Thank you. Your witness, counsel.
Picture this scene taking place before a jury in a crowded courtroom in June with a nation and the world looking on, after the prosecution has introduced all of its damning evidence against the defendant, including the medical examiner’s testimony using graphic color photos taken during the autopsy, as this young woman confesses her love and affection for Trayvon while baring her soul and tearfully confessing to her overwhelming sense of loss, responsibility, confusion, weakness and guilt.
If BDLR conducts the direct examination properly, as I believe he will, the best cross will be no cross. The jury will not take kindly to a defense attorney picking on her and prolonging her agony.
Finally, do not forget that the phone records and the other evidence in the case will independently confirm everything else she says about her conversation with Trayvon.
One understandable simple lie by Dee Dee is relatively unimportant compared to the vast ocean of lies uttered by the defendant in this case.
Is the prosecution crumbling? I don’t think so.
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LLMPapa produces a new video regarding the alignment of the bullet hole in Trayvon Martin’s chest and the aligned holes in the two sweatshirts that he was wearing.
The focus of the piece is Mark O’Mara’s “struggle” to get people to pay attention to the evidence instead of racism.
Whatever the outcome of the Trayvon Martin case, it will be viewed less as a determination of the shooter’s guilt or innocence and more as a victory or loss for civil rights, George Zimmerman’s lawyer fears.
Mark O’Mara said he has been busy trying to dispel the racial overtones in the case by getting out more evidence about his client.
Thereafter, we get the usual he-said-she-said description of the case interspersed with O’Mara’s unchallenged mischaracterizations of the evidence followed up with this description of Benjamin Crump as a rabble rousing troublemaker pushing the race card.
O’Mara indicated at trial he will dissect the recording of Zimmerman’s 911 call and point to evidence of the wounds Zimmerman said he suffered that night.
“I believe, you know, again, the evidence is what it is and that’s for a jury to determine,” O’Mara said. “But a close reading or looking at that tape and all the evidence that followed, particularly George’s injuries and Trayvon’s lack of injuries but for the fatal gunshot, suggest that George did not begin the fight, did not continue the fight and actually was the victim of the attack rather than the other way around.”
But a lawyer for the Martins said the fight against “senseless gun violence” will continue.
“He went home and slept in his bed the night he killed Trayvon,” attorney Benjamin Crump said. “And that wasn’t equal justice.”
Crump then led a chant of “Hoodies up! Hoodies up!” at the vigil.
As all of us know, despite conceding that his client was the aggressor, O’Mara has been shoving his demonstrably false “bloody” photograph in front of every camera he can find in pursuit of his easy-to-disprove false narrative that the peaceful and nonviolent Trayvon for no apparent reason attacked and attempted to kill the defendant with his bare hands in the middle of his phone conversation with his girlfriend after successfully running away from the defendant who had been stalking him in a vehicle and then on foot contrary to a police dispatcher’s warning.
The simple truth is this defendant has no defense and the only mystery in this case is why anyone believes that the he did not hunt, confront, and murder Trayvon Martin for the heinous crime of walking while Black in the rain with his hoodie up.
I said long ago and I will repeat it today:
Anyone who believes the defendant is innocent is a racist and anyone who contributes money to his defense is a stupid racist.
Let there be no mistake: Although he claims otherwise, Mark O’Mara and his client are deliberately appealing to racial hatred and fear of young Black males to literally get away with murder.
That is what this case is all about and shame on CNN for not reporting the truth.
Nefertari05 posted the following comment today at 2:54 pm.
“I am curious about one thing though. Many people have posted it is physically impossible to make that shot, with the straight trajectory, while laying on his back with Trayvon over him. I posted this thought many months ago, using a sexual position analogy, but I really don’t understand why if Zimmerman’s arm is raised at a 45 degree angle (aiming up, continuing the 45 degree angle), and Trayvon is leaning over, perpendicular to the gun, why it wouldn’t be a straight thru, no angle shot. Granted, I am no scientist, and my understanding of physics is elementary, at best, but a 45 degree angled arm (from a prone position), with Trayvon leaning over, perpendicular, seems like a straight shot to me. I know I’m missing something. I freely admit it. Can you explain to me what it is, so I have a better understanding?”
When medical examiners do autopsies on gunshot victims, they insert metal rods into the wounds and take photographs of the rods sticking out from the body so people can clearly see the angle of entry and trajectory of each bullet.
I have no doubt the assistant ME did the same thing with Trayvon’s bullet wound.
Couple that with expert testimony about the distance from which the fatal shot was fired and you get a pretty good idea of the location of the muzzle and the position of the gun relative to the location and position of Trayvon’s body.
Hold that image in your mind and imagine that you are the shooter lying on your back with the gun in a holster inside your waistband behind your right hip.
How do you get that gun out of the holster using only your right hand and maneuver it into the position it has to be in when the defendant fired the fatal shot?
Remember that he said he extended his arm, aimed to avoid shooting his left hand and fired.
The first problem is that his body is on top of the gun. He would have to roll over on his left hip to be able to reach the gun with his right hand and pull it out. This move probably would have thrown Trayvon off his body, but he never claimed that happened and, if it had, he would no longer have been reasonably in fear of imminent death or serious injury.
The second problem is that the presence of Trayvon’s thigh and lower leg would have complicated rolling to the left and blocked access to the gun. Also, the surface of the ground would have blocked and restricted movement of the elbow further complicating the draw (not to mention that there is no way Trayvvon could have seen the gun).
Third, I’m not sure, but I think he holstered the gun for a cross-draw with the left hand. If so, the gun butt would have been facing forward requiring an additional move to turn the gun around so that the muzzle was facing forward.
Fourth, then he had to position the gun between their bodies instead of just sticking it into Trayvon’s ribs and pulling the trigger.
All of these problems are avoided if he is on top straddling Trayvon with his knees and shins pinning Trayvon’s arms to the ground.
He could take his time, draw his gun, taunt Trayvon, aim and pull the trigger.
Mary Cutcher, Selma Mora and the teacher all said the shooter stood up immediately after the shot leaving the victim lying on the ground.
Finally, there is the displacement between the bullet holes in the two sweatshirts that align with each other, but not the wound that I have previously mentioned. The displacement indicates the defendant was gripping the sweatshirts with his left hand and pulling the sweatshirts down and to the left and away from Trayvon’s body toward himself, possibly to get his hand out of the line of fire, when he fired the kill shot.
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“Obviously, when Dee Dee made her statement she had heard GZ NEN call. We would have a much better scenario concerning her statements, had SPD done it’s job and interviewed her earlier. On the other hand, they had troubles to get at the phone due to the password. That’s the crux.”
I do not agree.
I do not believe Dee Dee had listened to the NEN call before Ben Crump interviewed her. IIRC, it was not released to the public until much later. The SPD had a lot of investigative work to do interviewing witnesses and processing the crime scene. If they even thought about it, checking the phone log probably would have been a low priority item on the to-do list, until after Ben Crump revealed that Dee Dee had been talking to Trayvon when the defendant stalked and assaulted him.
While it’s theoretically possible that the GPS data for the day of the murder might help the defense, I doubt that it does because we would have seen the defense lawyers congratulating their client and we would have seen him smiling or smirking at the news.
Instead, we saw gloom, doom, resignation, desperation and a visible dislike for the client that is more consistent with bad news for the defense. I cannot imagine that MOM would have failed to mention that the GPS data exculpated the defendant, given his propensity to try the case in the court of public opinion. He would have mentioned it in support of his argument for a continuance, if it existed, instead of waving around an insignificant bar-chart during an extemporaneous and rambling plea for a continuance.
He did not give a coherent answer when she put him on the spot and asked him to provide a specific reason why he needed a continuance. The best he could do was to squeak about not having any experts even though the defense team’s mismanagement of funds is the reason why it has no money to hire experts.
If the GPS data did not exist, or if it were uninterpretable, I think BDLR would have disclosed that in open court to Judge Nelson, defense counsel and the public. He did not do that. Instead, he graciously offered “to connect the dots” for the defense, but they did not rise to the bait.
That tells me the GPS data hurts the defense, badly.
The only reason that I can think of to explain why no one touched this issue and the body language of the defense team, including the lawyers turning their backs on the defendant and leaving him behind sitting forlornly at counsel table as they left the courtroom, is that the evidence devastates his story.
To his credit, I think BDLR resisted the urge to play “Gotcha” and I respect him for that.
He has the trump card. He knows he has it, and the defendant knows it too.
Now, we do too.
The defense team is up the proverbial creek without a paddle, unless the skies suddenly open releasing a downpour of dollars into the defense coffers. I recommend not betting the ranch that will happen.
The defendant is indigent or soon will be. He cannot adequately prepare for trial without an investigator and multiple experts. They do not work for free and he cannot afford them.
Under these circumstances, his lawyers need to file a motion asking Judge Nelson to find him indigent and sign an order allowing him to proceed in forma pauperis.
Posted by masonblue 
