Witness 8 (Dee Dee) did not commit perjury

Saturday, March 9, 2013

Good morning:

Today, we are going to take a tour of the Florida perjury statutes to clear up any lingering confusion caused by the troll yesterday regarding the law and its possible application to DD.

EDIT: H/T to Fauxmccoy for her excellent discussion of this issue last night in an effort to educate a willfully dumb troll whom I subsequently banned for derailing discussion. As the owner of the blog, I decided that I had an obligation to step in as an authority on the subject to clean-up the mess created by the troll, even though her ladyship did a mighty fine job of that herself.

Keep in mind that I believe the evidence will show that she did not lie about anything, much less commit perjury and I believe the U.S. media has been grossly irresponsible in reporting that she did. Nevertheless, the false accusation has been made and I am going to hopefully refute and bury it forever.

Introduction

Keep in mind that all federal and state crimes are defined by statutes passed by both houses of a bicameral legislature and signed into law by an executive (president or governor). They are enacted pursuant to the police power granted to the legislative body by the federal or state constitution.

Federal courts have jurisdiction to decide cases involving violations of federal offenses and state courts have jurisdiction to decide cases involving violations of state offenses.

All criminal statutes consist of elements that the prosecution must prove beyond a reasonable doubt to convict a defendant. The elements consist of a particular state of mind (mens rea) and a prohibited act (actus reus).

The Florida perjury statute sets forth two general categories of offenses: perjury and false statements. Perjury is the more serious offense because it consists of the base offense (a false statement) with additional elements (oath and subject matter materiality).

Perjury is subdivided into 3 categories: perjury in official proceedings, perjury not in official proceedings and perjury by contradicting statements.

The false statements category also is subdivided into 3 categories: false reports to law enforcement authorities, false information to law enforcement during an investigation, and false official statements.

Notice that the basis for distinguishing these false-statement offenses from ordinary everyday lying is the element of the offense that specifies to whom the lie is communicated.

That is, mere lying is not a criminal offense.

Now, let us take a look at each of the offenses beginning with the false statements that define the boundary between lies without criminal consequences and lies with criminal consequences.

False Statements

False reports to law enforcement authorities (FL. Stat. 837.05)

(1) Except as provided in subsection (2), whoever knowingly gives false information to any law enforcement officer concerning the alleged commission of any crime, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Whoever knowingly gives false information to a law enforcement officer concerning the alleged commission of a capital felony, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

This offense consists of knowingly providing false information to a law enforcement officer concerning the alleged commission of any crime. This conduct is defined as a first degree misdemeanor, unless the crime in question is a death penalty offense, in which case the offense is a third degree felony. No crime is committed if the false information is provided to someone who is not a law enforcement officer.

Note that even if DD lied to BDLR about going to the “hospital or someplace” and he qualifies as a law enforcement officer, the false statement did not concern the alleged commission of a crime. Therefore, she did not violate this offense.

False information to law enforcement during investigation. (FL. Stat. 837.055)

(1) Whoever knowingly and willfully gives false information to a law enforcement officer who is conducting a missing person investigation or a felony criminal investigation with the intent to mislead the officer or impede the investigation commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Whoever knowingly and willfully gives false information to a law enforcement officer who is conducting a missing person investigation involving a child 16 years of age or younger with the intent to mislead the officer or impede the investigation, and the child who is the subject of the investigation suffers great bodily harm, permanent disability, permanent disfigurement, or death, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

This offense is more specific because it contains additional elements that must be proven. The prosecution not only has to prove that the speaker knew the information was false, it has to prove that the speaker acted willfully. It also has to prove that the law enforcement officer was conducting a missing person investigation or a felony criminal investigation, and the speaker provided the false information with the intent to mislead the officer or impede the investigation.

The distinction between the misdemeanor and the felony version of this offense is that the felony adds two elements; namely, the missing person must be a child 16 years of age or younger and the child suffered great bodily harm, permanent disability, permanent disfigurement, or death.

DD did not violate this statute because it is about a missing person investigation.

False official statements. (FL. Stat. 837.06)

Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Here we see that the foundational requirement of the false-statements offenses (i.e., to prove that the defendant knowingly communicated false information to a law enforcement officer) requires additional proof that the communication is in writing with the intent to mislead a public servant in the performance of his or her official duty.

DD did not provide a written statement so she did not violate this statute.

Now, let us move on to the perjury offenses.

Perjury

Perjury in official proceedings. (FL Stat. 837.02)

(1) Except as provided in subsection (2), whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding that relates to the prosecution of a capital felony, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Knowledge of the materiality of the statement is not an element of the crime of perjury under subsection (1) or subsection (2), and the defendant’s mistaken belief that the statement was not material is not a defense.

This statute requires the prosecution to prove that the defendant made a false statement under oath in an official proceeding regarding a material matter while believing that the statement was not true.

Note that while the false statement must be about a material matter, the prosecution does not have to prove that the defendant knew that the statement was about a material matter. Put another way, lack of knowledge that the statement was about a material matter or a mistaken belief that it was not about about a material matter is not a defense. This is where yesterday’s troll got lost in the woods, never to be seen or heard from again.

A material matter is defined as “any subject, regardless of its admissibility under the rules of evidence, which could affect the course or outcome of the proceeding. Whether a matter is material in a given factual situation is a question of law.” 837.011(3) This means that the subject matter of the false statement can be material even if it is not admissible. Put another way, materiality does not depend on admissibility.

As I said in my post about DD’s statement under oath to BDLR, even if we assume that she lied about going to “the hospital or someplace,” the subject matter of her statement was not material because whether she went to the hospital “could not affect the course or outcome of the trial.” As such, it is a collateral matter.

An Official proceeding is defined as “a proceeding heard, or which may be or is required to be heard, before any legislative, judicial, administrative, or other governmental agency or official authorized to take evidence under oath, including any referee, general or special magistrate, administrative law judge, hearing officer, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with any such proceeding.” 837.011(1)

BDLR’s interview of DD also did not qualify as an “official proceeding.” Therefore, DD did not violate this statute, even if she lied under oath about going to “the hospital or someplace.”

Perjury when not in an official proceeding. (FL Stat. 837.012)

(1) Whoever makes a false statement, which he or she does not believe to be true, under oath, not in an official proceeding, in regard to any material matter shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant’s mistaken belief that his or her statement was not material is not a defense.

Proof of this offense eliminates the official-proceeding element while retaining the materiality element.

Therefore, DD did not violate this statute either.

Perjury by contradictory statements. (FL Stat. 837.021)

Note: This is not applicable. I provided it FYI, so you can skip down to the conclusion or read it according to your wishes.

(1) Except as provided in subsection (2), whoever, in one or more official proceedings, willfully makes two or more material statements under oath which contradict each other, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Whoever, in one or more official proceedings that relate to the prosecution of a capital felony, willfully makes two or more material statements under oath which contradict each other, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) In any prosecution for perjury under this section:

(a) The prosecution may proceed in a single count by setting forth the willful making of contradictory statements under oath and alleging in the alternative that one or more of them are false.

(b) The question of whether a statement was material is a question of law to be determined by the court.

(c) It is not necessary to prove which, if any, of the contradictory statements is not true.

(d) It is a defense that the accused believed each statement to be true at the time the statement was made.

(4) A person may not be prosecuted under this section for making contradictory statements in separate proceedings if the contradictory statement made in the most recent proceeding was made under a grant of immunity under s. 914.04; but such person may be prosecuted under s. 837.02 for any false statement made in that most recent proceeding, and the contradictory statements may be received against him or her upon any criminal investigation or proceeding for such perjury.

I included this section about multiple contradictory statements FYI, although it is not relevant at this time.

Conclusion

DD did not violate any of these statutes, even if she lied to BDLR about going to “the hospital or someplace,” instead of going to the funeral or wake.

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64 Responses to Witness 8 (Dee Dee) did not commit perjury

  1. Lonnie Starr says:

    Hmmmmmm… GZ has made a host of conflicting statements during these investigations, to LEO’s to boot. MOM had better tread carefully or risk setting GZ up for even more troubles.

  2. Erica says:

    @LLMPapa can u do ur testing with the skittles and icetea in his pocket?

  3. Erica says:

    Does anyone know where the car of icetea was located and was there blood on the skittles and who’s blood?

    • Erica says:

      sry “can” of icetea

    • Nef05 says:

      Beverage and skittles were in pocket. Skittles were swabbed for blood. I don’t recall reading a result. Which is not to say there wasn’t one. I just can’t recall it amidst all the test read through this afternoon. I’ll check again tomorow, if no one has a quick answer before then.

      • onlyiamunitron says:

        The blood on the Skittles package was found to be that of the deceased, Trayvon Martin.

        unitron

      • elcymoo says:

        If I remember correctly, Trayvon’s blood was found on the bag of Skittles, but no blood was found on the can of ice tea.The blood on the Skittles could have been transferred by GZ after the shooting or by one of the EMTs or police officers. It doesn’t appear to me that the evidence at the crime scene was handled in a proper manner.

    • Malisha says:

      Does anybody know if the memorial button Trayvon wore on his hoodie was tested for DNA/blood/etc.?

  4. Rachael says:

    Wow, thank you for the all-encompassing post! Very well done and educational.

  5. I am disgusted and furious with the U.S. lamestream media and their coverage of the DD issue.

    They are deliberately reporting false information and falsely accusing a young woman of perjury whose only “crime” is reporting what she heard from her friend over the phone as he was stalked, attacked and murdered by the defendant.

    And they dare do this in the name of providing balanced reporting.

    May the people responsible for this atrocious behavior and their employees, the people who published the lie rot in hell forever.

    • Bill Taylor says:

      indeed, and that gives me comfort for indeed my Creator will hold me accountable for my life and i eagerly await that, with the knowledge that the Creator will also be having a nice long talk with those folks you mention in the media……it does amaze me that in the USA media will outright LIE in headlines when they know full well they are LYING.

      the little blurb hidden in the text “according to the defense” does NOTHING to alter the impression given by the headline.

    • elcymoo says:

      I’ve sent e-mails to 4 or 5 different reporters or media outlets, and the only response I’ve had so far is an automated ‘we get too much mail to answer it all’ from ABC.

    • KA says:

      Hear, hear…it puts me in a rage. Let’s just get this down to brass tacks…it had nothing to do with what she heard or say. They do not have this much venom for two women witnesses..She is a young black girl that could be studying in a convent and she would still have the same media attention, accusations, and backlash. This all comes down a general belief of far too many in this country that a young black girl and a young black boy’s lives are not worth respect!

      Really, this is just another racist rant from people who have such superiority that they feel their closed minded, narrow brained lives and security of them are worth more than others…

    • parrot says:

      “Fair and balanced” = journalistic cowardice.

      These “journalists” have neither the inclination to look intelligently into the evidence nor the gonads to publish the conclusions they would inevitably reach if they did. They are unworthy of the public trust.

      MENE, MENE, TEKEL, UPHARSIN.

    • Nef05 says:

      I am, as well, prof.

      Head’s up – I’m the one who BCC’d you on the email to Capehart at Washington Post. I didn’t send it from my yahoo email, so you likely won’t recognize the name (though you’ll probably recognize the writing). It’s not spam, though, just a plea from me and a link to your article. He may well be too busy to look at it, but after OMara’s novel length response to his last editorial, I certainly don’t believe he’d be intimidated. Here’s hoping he has some free time he can devote to the subject.

    • Malisha says:

      So, we see that the NBC suit was done for purposes of litigious terrorism: sue one media source and you’ll have all the others bowing and scraping and doing your bidding forever. My ex-husband practiced this. He sued a judge for not doing what he wanted. Then he moved for recusal without notice to my lawyer (who was such a stupid bum that he didn’t MENTION that we should have been noticed) and got rid of that judge and replace him with a chickenshit judge who wouldn’t rule against him because HE didn’t want to be sued. And my ex bragged about this and the fathers’ rights gang took it up and began to do it all over the place (they handed out papers to give instructions on how to do it) and in the end Congress had to amend 42 USC 1983 to provide that you couldn’t get rid of a judge by suing him! The US Supreme Court almost took the case to see if it was constitutional to do that but they didn’t take it in the end; I wish they had. If there was Internet at the time this happened I would have advertised far and wide that anybody who didn’t like any decision made by any judge should sue him or her immediately; we should have brought down this whole stupid corrupt system.

      It’s a shame our population lacks energy.

    • Brandi Kansas City says:

      Professor,
      Is Omara’s subpoenas on social media records, school records and constant attempts to personal attack speak to the weakness of his defense at all?

      • I likely would have asked for those records too, but I would never demonize a victim, particularly a child, or play the race card, no matter the strength of my case.

        I do not know why he believes those are good strategies, unless his motive is to troll racists for dollars.

      • Brandi Kansas City says:

        Ok thank you for responding. I see your point.

  6. Tell it like it is professor

  7. Wonderful overview! I now understand why SZ was charged.

    In reading this, I also see that GZ could be charged on several counts. He was running/he was not running… Homie/no homie… He was following/he was not following… He circled the vehicle after doubling back from the T… GZ fell straight back after a single punch just west of the T/GZ swatted flies for 40 feet… Fking punks/fking c**ns… GZ finished his degree… GZ had never been in a diversion program… GZ had a valid license to carry (not sure about this one)… GZ thought he was a little younger than GZ was/”I don’t know where this kid is… The statement filed through his counsel requesting reasonable bond… The deception by omission about the Pay Pal account.

    Whew! Pick one!

  8. Judy75201 says:

    I don’t see anywhere in DD’s statement that she said she did not go to the wake or funeral because she went to the hospital instead. She said she was going to, but that she didn’t feel good. BDLR then asked, “Did you end up going to the hospital or somewhere?” “End up” does not necessarily mean immediately or at that time.

    • KA says:

      Honestly, I think she said something to Ms. Fulton in a private conversation in a car ride, but did not connect that it was that night. She said she was sick and had to go to the hospital, but she may not have meant the same night. That was a misunderstanding of what they said.

      When I heard they had requested 6 months of medical records, I think she has gone to get medical treatment at some point and refused the records probably because they feared anyone knowing who she is.

      Like I said in another post, if I was sick the 17th of December and went to the hospital the 31st of December I would say I missed something on the 18th due to whatever illness I was diagnosed for on the 31st and say I had medical treatment. This is normal verbal pattern for many people (like me).

  9. Nef05 says:

    Great article, professor. In learning, I could compare/contrast to the fogen bail hearing, as well. For me to be able to do so, as well as keep their individual violations (or not, in DD’s case) is very helpful. Thanks!

    @faux – I read that argument last night, and thought it was extremely well done, also.

    • fauxmccoy says:

      thanks nef 🙂 it was one of those ‘hard to engage in a battle of wits with an unarmed opponent’ situations and many of us were doing our best. glad he got das boot, cause he’d have driven me up a wall right quick.

  10. fauxmccoy says:

    gee, this reminds me of a well constructed argument i posted yesterday to the late, not-so-great nate as he was on the receiving end of your boot. now i know far more about perjury laws in florida than i ever wished.

    later, nater!

    • You deserve all the credit and I will amend the post to give you credit.

      • fauxmccoy says:

        oh pssshaw! i was not angling for anything. it just reminded me of the way tooooo much time i devoted to dealing with nate and the perjury issue.

    • Jun says:

      I dont think he understood that false statements is the name of the statute and charge, although it is under the chapter under Perjury, the charge would be false statements not perjury

      • I believe you are right. He apparently did not understand that perjury is both a category of criminal lying and a crime.

        When speaking of a crime, one must specify whether the crime is perjury or false statements. They are not the same.

        His stubborn unwillingness to consider what others were saying and his determination to force his erroneous viewpoint down everyone’s throat is what ultimately doomed his welcome here.

        Some people never learn and he is one of them.

        • fauxmccoy says:

          the most frustrating aspect for me was what appeared to be circular reasoning. he repeatedly state he did not think that W8 lied, but would then pull random pieces of statute concerning perjury/false statements in order to accomplish god knows what. his failure to realize that each individual statute covers a specific type of perjury or false statement and that none of them were applicable was unbearable. his posts belied his statements.

          he may in fact be a supporter of ‘justice for trayvon’, but with each post, he seemed to drive the nails into his own coffin by refusing to examine his own reasoning, much less consider that of those who are more learned in interpreting statutes … and that would be you, fred, i am merely your ardent pupil here 🙂

  11. willisnewton says:

    Since when was it ever the State’s job to seek or obtain W8’s medical records?

    Were they compelled to seek them and if so why?

    • Jun says:

      The state were never compelled to seek her medical records because it was a moot issue and has no practicality in the case against Fogencrack for murder 2

      It was never their job and never an issue at all, only the Zidiots made it an issue because they out they bloodclot minds with nonsense

      I do not know why they did not just depose w8 and then she could have or her lawyer, just tell them to take a hike and they are not getting her medical records or her address, and then that is the end of that story

  12. Jun says:

    I think Guy and Nelson put it best, it is a moot issue, a pretended controversy, with no practical application, and is not even necessary to delve into it

    They can not even use it against her in trial to try and undermine her credibility because it would be assuming facts without evidence

    Also proves my theory that the defense twists everything and uses yellow journalism because the state replied that there were no hospital records to obtain in reply to the defense’s request for medical records, and then the state said to depose witness 8, and then they can speak about the matter after her deposition, but it is a moot issue

    Nelson agreed and said to just depose witness 8, and then talk to her about the medical records, and if anything is different from what was said in court, then they can depose her on the medical records strictly

    As usual, West does not listen very well and keeps on with his allegations and then Nelson decides to strike it as moot

    • fauxmccoy says:

      jun – my interpretation of the hearing where the request for medical records was declared ‘moot’ differs from yours.

      it is a ‘moot’ because records do not exist, if i understand ASA Guy correctly. the same would be so for judge nelson who denied the motion without prejudice, meaning that it could be brought forth again if the defense felt it necessary after the deposition.

      neither of those statements really indicate that the point of medical records is moot for the purpose of discovery. if that were the case, i think that judge nelson would have denied the motion with prejudice.

      this is not to imply that i think W8 needs to cough up any records whatsoever without a good fight and a court order.

      • aussie says:

        If I recall correctly, the prosecution said “there WILL be no medical records…” ie they will not be handing any over. They did not say none exist. Actually they may not even know if they exist or not, as whatever records there are, are SEALED under the relevant privacy law I don’t recall the acronym for.

        • fauxmccoy says:

          that is basically what i recall as well – but think that the statement is open to interpretation.

        • fauxmccoy says:

          rats – comment posted before i was finished.

          it is federal law which makes medical records private without the patient’s consent (HIPAA). the state would have no jurisdiction to seal them, but they likely know something about any such records is my guess.

        • Xena says:

          @aussie

          If I recall correctly, the prosecution said “there WILL be no medical records…”

          ASA Guy stated there are no hospital records. He also stated that the witness is opposed to giving the defense her medical records

          I’ve thought about this a lot since the hearing, first presuming it might be semantics. It may or may not be. People can have medical records who have never visited nor been admitted to a hospital.

          West needs to be more specific. If all he wants is documentation that DeeDee was treated on the day of Trayvon’s wake, that is what he should ask for.

      • Jun says:

        Faux

        I believe that is why in the beginning they all asked the defense to depose and ask her, get the information straight from the source

        But instead, the defense would rather make accusations based on ambiguous information

        I do not know if there are medical records, and there could be a myriad of reasons why there are none, one of them would be her refusing and objecting to it, or the state never put any effort forward to obtain

        Does not seem like a huge issue because to me it is moot, a pretended controversy, and if they want to make a huge issue about her stay at a hospital or somewhere, when the issue comes back onto Fogenhats, the defense will look like a bunch of idiots and hypocrites because they will then be trying to downplay Fogen’s lack of hospital records

        The defense can not have it two ways and considering the microscope that will become thicker on Fogenhats’ lack of hospital and medical records, it would not do the defense well at trial to even bring it up to be perfectly honest, because if they are going to make a big deal out of a non issue and pretended controversy over her medical records, it will become an even bigger deal for Fogenhats

        Personally to me, I think Nelson put it best, they should just depose witness 8 on the moot issue and find out from her, and if there are medical records, then they can depose her strictly on that, and then they can also readdress it at a later hearing after they speak to her and get the information straight from her, that way there is truth to that

    • Two sides to a story says:

      It makes for headlines and the Treestump types like to run with the ball. But there’s no touchdown at the end of that run.

  13. Xena says:

    Professor. What a thorough post. Thank you so very much.

  14. I don’t think the US media actually cares if DD lied or not as long as they can say she lied with it being based on something that is totally flimsy. They have done their best to portray innocent GZ as someone who is being tormented by the “black racists” who just simply want his blood for the death of a child in absence of the examination of the evidence.

    The jury pool will be picked from the very location the openly biased Orlando Sentinel is delivered and I suspect that there will be shortsighted jurors who doesn’t want to see “black racists” get a win. They wont care if he committed murder or not, they know who they really hate.

    • Jun says:

      we should be careful and pick actual impartial jurors but odds wise, it is quite in the impartial flavour

      Orlando is not in Seminole County

      and the jury can only weigh what was presented and authenticated, otherwise they would get busted and someone would get in trouble for jury tampering

      • towerflower says:

        True Orlando is not in Seminole County, but next door and what Leroy said is correct the OS is the largest newspaper for Central Florida and it covers several counties.

    • Two sides to a story says:

      We can only hope we get unbiased jurors who are more interested in truth than an agenda.

    • leander22 says:

      Leyroy, I fully agree with you. Good comment. That’s the most dangerous meme in the larger media narrative, if you ask me. It also adds the necessary threat scenario that seems to work over the centuries. A perfect Machiavellian tool. So it’s also a huge question who is “race baiting”, here.

      It occurred to me that your tale is enormously reminiscent of the blood libel scenario historically speaking. Only we now have a shifted narrative in that the majority claims to be threatened by a minority.

      Consider we are post 911. If you maximize a threat from a specific group, collectively, it seems you allow people to add all types of other enemies to the “good and righteous majority” into the mix. That’s at least how it worked under Nazis.

      The problem of course is that in these historic cases an arbitrary member of a group was accused, just as Trayvon in our case was arbitrarily chosen as a member of a specific group. First accused as a “burglary ‘suspect'” and when things went wrong as a “dangerous killer”, with the perpetrator fully expecting to get away with it. SYG “the winners” versus “the losers”. Or the not even 5% of concealed carry permit holders in Seminole County. Are they his peers?

      A rather outspoken part of the US society seemingly fully agreeing that is the way it should be. So while one can encounter it quite a bit, or related memes, it simply puts matters on its head. But obviously it feeds on GZ’s own victim act.

      Again, who is “race baiting” here? How about Fogen?

  15. blushedbrown says:

    following behind MountainManpat

    Heigh-Ho Heigh-Ho Heigh-Ho

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