Game Within the Game: Zimmerman lawsuit against NBC was a bright shiny object

Saturday, June 14, 2014

Good morning again:

George Zimmerman will be back in the news next week. NBC has filed a motion to dismiss his civil suit for money damages that he alleges were caused by their reporters misrepresenting what he said about Trayvon Martin to the police dispatcher during his recorded non-emergency 911 call. He specifically claims that their report transformed his race neutral call into a racist sounding call causing all of his subsequent miseries.

Game within the Game

I suspect the lawsuit was a bright shiny object intended to divert public attention away from George Zimmerman and place it on NBC and their reporters. It also served a secondary purpose by placing his counter-narrative in the public domain. O’Mara beat that narrative like a drum and the media dutifully reported it as though it were true. I think the strategy was successful because it influenced jurors’s opinions of the evidence.

I believe the lawsuit has served its purpose and NBC will win the motion, given Zimmerman’s profiling behavior, which is evident in his non-emergency call, including his “fucking coons” and “these assholes they always get away” statements.

I recognize that the prosecution claimed Zimmerman said, “fucking punks,” but I have listened to his call and it sounds to me like “fucking coons.” I believe they can hear as well as I do. I question the wisdom and propriety of conceding that he used the word punks instead of coons. I also would not have conceded that race had nothing to do with the case because I believe it had everything to do with the case and the jury acquittal.

The legal test at this stage of the civil case is whether, assuming his evidence is true, together with all reasonable presumptions that flow from it, is it enough to support a verdict in his favor.

I don’t believe it is because by word and deed he created the situation.

The jury’s acquittal does not mean there wasn’t probable cause (i.e., objective facts and circumstances that would lead a reasonable person to conclude that it was more probable than not that he murdered Trayvon Martin).

More importantly, Judge Lester’s finding of probable cause was not based on NBC’s reports. It was evidence-based. That is, he based his decision on Zimmerman’s recorded call, his recorded conflicting stories to police, evidence from the crime scene including the location of Trayvon’s body, which was inconsistent with his statements to police, and some recorded 911 calls and the autopsy report.

Therefore, even if NBC’s reporters got it wrong, and I don’t believe they transformed a race-neutral statement into a racist one, their conduct did not cause him to be charged.

He did not incur legal fees of $1 M because of what NBC did. He incurred those fees because of what he said and did.

He also did not request a pretrial SYG hearing and is potentially liable to Trayvon’s parents for Trayvon’s wrongful death, if they decide to sue him. Recall, for example, the families of the two victims in the OJ Simpson case who successfully sued him for their wrongful deaths despite his acquittal.

As a matter of law, the jury acquittal in the Zimmerman case means that there was insufficient evidence to prove his guilt beyond a reasonable doubt.

That does not mean there was not probable cause to believe he murdered Trayvon Martin and it does not preclude a finding by a preponderance of the evidence that he caused the wrongful death of Trayvon Martin.

How can that be?

Preponderance of the evidence is a significantly lower burden than proof beyond a reasonable doubt. Just as in OJ’s case, therefore, a person may be able to prove something by a preponderance, but not beyond a reasonable doubt.

The NBC misrepresentation, assuming it was a misrepresentation, did not cause any harm and we know that because nothing would have changed if it had never happened. Zimmerman would still have been charged, prosecuted and acquitted.

That is why the suit against NBC should be seen for what it was and dismissed. It was nothing more than a bright shiny object to divert attention and mesmerize.

I will take another look at this before Thursday’s hearing, which I anticipate will be livestreamed.

A few words about me: I rely on my 30-year experience as a felony criminal defense attorney and my three years experience as a law professor to analyze the game within the game explaining the applicable rules of law and procedure and the reasons why the lawyers and judges do what they do.

My goal is to assist readers to see through to the heart of a case despite the confusing turmoil of words and phrases that often conceal it.

To educate is to liberate.

If you enjoy and appreciate what I do, please make a donation.

Thank you,

Fred

37 Responses to Game Within the Game: Zimmerman lawsuit against NBC was a bright shiny object

  1. racerrodig says:

    “I should have added that phlebotomists are generally better than other medical professionals at drawing blood because that is the only thing they do.”

    • racerrodig says:

      I’ll add….

      Yep. My wife is a Phlebotomist and can draw my blood from inside my elbow while I’m asleep…..and not wake me up.

      She’d never take part in an execution, but you nailed the “..generally better..” part.

  2. bettykath says:

    update on the botched ok execution…..

    http://www.dailymail.co.uk/news/article-2657694/Oklahoma-officials-botch-execution-Death-Row-inmate-causing-writhe-pain-40-minutes-dying.html#ixzz34ibaq9IS

    An Oklahoma inmate condemned to death by lethal injection died because of an error in the way the IV was administered, according to the results of a private autopsy released Friday.

    The autopsy, which was arranged by lawyers representing condemned Oklahoma inmates, determined that prisoner Clayton Lockett, who died following a botched execution, had healthy veins but his body had punctures from multiple attempts to tap them.

    Pathologist Dr. Joseph Cohen performed the autopsy, which challenged the official explanation that Lockett died because of his veins being ‘blown out.’

    ‘Contrary to statements by the state, Mr. Lockett’s veins did not collapse or “blow out,”‘ according to Cohen’s findings. ‘Rather, despite the excellent condition of Mr. Lockett’s veins, the execution team made numerous failed attempts to set an IV, eventually setting an improperly placed and ineffective IV in Mr. Lockett’s femoral vein.’

    • bettykath says:

      According to Cohen, placing an IV in the femoral vein, which is in the groin area, is a more painful and risky way to inject drugs intravenously.

    • OMG! That finding should end any further delusional thinking that the death penalty is neither cruel nor unjust.

      • bettykath says:

        I suspect that it wasn’t a trained medical person jabbing him. Doctors and nurses should have an ethical problem with being involved, as the pharma’s in refusing to make the poisons available. They are late to the event but better late than never.

        • From the same Mother Jones article,

          Oklahoma corrections officials, as well as the governor, said athat a phlebotomist had inserted Lockett’s IV. Phlebotomists are fairly low-level health care workers whose primary training and work involves drawing blood for testing. Leaving aside the fact that, in Oklahoma, phlebotomists aren’t licensed, regulated, or trained in inserting catheters or IVs, the state’s own protocols require a paramedic or EMT to inert an IV. After the Tulsa World started asking about this discrepancy, the state changed its position and claimed that the work had been done by an EMT. State law makes this almost impossible to verify, shrouding the identities of execution team members in secrecy.

          • bettykath says:

            Thanks for completing the story. I didn’t read beyond the ads? It took 2 people to get a good jab when I recently had a bit of blood drawn.

          • I should have added that phlebotomists are generally better than other medical professionals at drawing blood because that is the only thing they do. Dr. Cohen’s report appears to be saying that Lockett was tortured because the vein was punctured and ignored.

            I hesitate to say tortured to death because we do not know for certain what the cause of death was.

          • bettykath says:

            I have no problem calling it torture. So many jabs and they couldn’t get the IV properly set up? Then they go to the groin where the jabs would be more painful and they still don’t get it right so he has 40 minutes of pain? When I had the blood draw, the first woman had trouble after the first attempt and she asked for help from another who seemed more experienced. So how many time is ok for a guy they are trying to kill?

          • I suspect Dr. Cohen avoided using the word “torture” because it has a specific legal definition, compared to its general meaning, and he has not been provided with the results of other forensic tests, including Lockett’s blood toxicology, that he needs to consider before issuing a final report.

  3. roderick2012 says:

    I only read a few pages of NBC’s request to dismiss, but was anything mentioned about the $300K in blood money or that he used it to pay off his personal debt.

    That fact alone should negate Piglet’s assumption that Piglet suffered harm.

    Hell Piglet became the ‘star’ that he always wanted to be thanks to the racist bigots.

    Add that to the jailhouse phone calls Piglet made and there’s no way that Piglet can prove that NBC ruined his already pathetic life.

    It would be nice if Judge Lester presided over this case but I bet that Judge Nelson gets to show her love for Piglet again.

    • Malisha says:

      Nelson will have to defend Fogen until the end of her career. That’s how it goes when a judge gives up her integrity for a punk; she’s got to keep to that program forever or she loses her power because when power concedes anything, it dissolves.

      • MKX says:

        There were so many “quirks” in that trial that could fill the pages of War and Peace.

        For example, days were spent on not allowing the testimony of audio experts.

        And the defense audio expert was allowed to state for the record that the scream was unusual and attributable to one expecting impending death; a further provision being that it could only be identifiable to a close family member.

        So then we get Mr “Nam on the stand to state that he is an expert in identifying death screams and that it was George doing the screaming.

        To me, that should not have been admissible.

        Of course, if the Jury had been paying attention, they would have noted what the defense expert stated and should have excluded what Mr “Nam said.

        Maybe I ask way too much of a jury.

        Part of my career had been making patent claim determinations and we go over the record line by line.

        Arguments are not valid, unless they can be supported by evidence.

        And arguments and statements , that are contrary to what has been accepted by experts in a particular area are dismissed.

        Instead, Ms “my husband is a space lawyer, so I am a legal expert” found Mr “Nam” believable.

        God, I wish I could have been on the jury to lock horns with her. She would have been carved a new asshole in writing that would have been larger than the Grand Canyon. Because I would have held out till Hell froze over. And I would have had a very detailed argument supporting my position to give to the press.

        Why?

        Because that dead teen deserved a jury that does it job.

        • bettykath says:

          God, I wish I could have been on the jury to lock horns with her. She would have been carved a new asshole in writing that would have been larger than the Grand Canyon. Because I would have held out till Hell froze over. And I would have had a very detailed argument supporting my position to give to the press.
          ——–

          I think you’re selling yourself short. I think with both of us we’d have been able to convince her that was fogen guilty of murder 2, If we add Melisha or one other from this blog (there are several candidates), we’d convince her that she was an unindicted co-conspirator due to her obvious racial bias that poisoned the community such that it made fogen think he was being a hero.

          In the publicity following, we’d be able to set things in motion for a federal investigation of perversion of justice attempted by the judge, the prosecutors and the defense attorneys.

          Ok. I may have jumped a bit far but it’s only by thinking the impossible that change is possible.

      • roderick2012 says:

        The fact that Piglet’s verdict was obviously racist has the Florida legal system (such that it is) scrambling by trying to legalize warning shots (Marissa Alexander) and Trevor Dooley has been allowed to appeal his conviction.

        One of the big things that I got from Piglet’s trial is that there should not be jury instructions.

        Judges shouldn’t have the power to tailor the laws to the case. The juries should only get the pertinent law and they should decide which parts of the law apply to each case.

        When Judge Nelson refused to include the ‘initial aggressor’ clause in the jury instructions she basically signed Piglet’s get out of jail free card.

        • Malisha says:

          You know, I had not thought of that, that giving jury instructions to a jury is a form of prejudice, a way to disable the jury. The judge makes the rulings all through the trial based on what the jury may or may not hear. Then, you are absolutely right, there should be no need for jury instructions period. The law should be printed up and taken into the jury room. When the jury asks a question, it should start, “This refers to section __ on page __” and if they want an explanation they get it.

          PERIOD.

          THey should get, along with their explanation, copies of the last three decisions that were made in the legal database on that question of LAW. They are the deciders of fact.

          The initial aggressor language was crucial and this judge was committing a crime by omitting it.

          Think: A guy goes into Walmart with a gun and waves it around screaing “get out get out the revolution is starting.”

          A person with a ccw who has his loaded gun on him is nearby and pulls his gun and advances on the man. Why? He was not in fear of immediate death or bodily harm: the man neither saw him nor aimed at him; the screaming man was screaming to LEAVE, which was safe. The man who pulled a gun and advanced on the “revolutionary shopper” would be guilty of terroristic threatening, at least, if “initial aggressor” is not factored into this scene, the shooter himself would have been innocent of any harm to come to the armed shopper, if he had lived long enough to go to trial.

          When you change “white armed neighborhood twat” and “black kid in hoodie” to “white revolutionary” and “Walmart shopper” you get two completely different pictures, don’t you?

        • MKX says:

          Nelson also made a completely erroneous interpretation of the case law that the defense used to justify her refusal to include the initial aggressor clause.

          Of course, when the right wing worships a Supreme Court judge who cites an opinion he wrote, which completely contradicts his present opinion, one can just roll their eyes in disgust.

          Authoritarianism at its finest – do as I say, not as I do.

  4. ronald fulton says:

    Thank you Mr.Fred!!!

  5. Good post. Fogen supporters put a lot of stock in him suing NBC and many other organizations and individuals. I hope Fogen doesn’t make a penny more for his misapplied bravado and his poor decisions.

    He’s been silent on Twitter since late April, by the way. It’s thought that his girlfriend is pregnant.

    • Malisha says:

      cover boy for father’s rights

      This father has the right to murder children.

    • crazy1946 says:

      “It’s thought that his girlfriend is pregnant.”

      Are there any rumors as to who the father is? 🙂

      • racerrodig says:

        Funny, it was back about Sept. last year she said she was pregnant. Lets see………..add at least 1 month until thought she was…….(carry the 5…..divide by the square root of 9……multiply by the constant…….) so unless my math is wrong and she’d have delivered by now.

        Daddy FogenPhoole ??

        Funny…….Fogen sure is silent on that one…..Hmmmmmm ??

        • Malisha says:

          Remember that on Hannity he loved his unborn children?
          I loved him when he was unborn too, wish he’d stayed that way.

          • racerrodig says:

            “I loved him when he was unborn too, wish he’d stayed that way.”

            A – hahahahahahahahahahahahahahahahahahahahaha !!!

            Perfect, absolutely perfect !!!!

        • MKX says:

          Fogen and his GF are con artists who tell lies to gain empathy from patsies. It is a form of deflection.

          Virtual buns in the oven and mythical mentored black children.

          • racerrodig says:

            I said it a million times…..if he mentored anyone, we’d all know their names. In fact, we’d have known them mid 2012.

            “…mythical mentoring…” I love new Fogen Phrases !!

  6. MKX says:

    I fail to see any merit to his argument. The prosecution did not argue that race was a motivation for the crime that he was found not guilty. Instead, they seemed to focus on “those assholes who always get away”. To me, that proves an intent to go out and get a person, regardless of their color.

    I also agree that he said “coons”.

  7. racerrodig says:

    Yes he did say that. I have a ton (in sheer weight alone) of PA equipment and EQ and crossover stuff. This enables me to remove or accent any frequency from 20HZ (very low) to well over 20KHZ (very high).

    I listened with my studio headphones and played with it for hours before his trial and in short, he clearly said “…fucking coons.”

    If I could find a way, I’d post it, but LLMPapa……I’m not.

    “Dismissed” will be a welcome word this week…….and sometimes the loser has to pay the prevailing parties legal expenses. One can only hope !!!!!

  8. Malisha says:

    Ahhhhhhhhh NOW I understand why Taaffee-ass suddenly came out with a public statement that Fogen was racist all along and he bases it on God talking to him and on “what I know of George and his tendencies” — NOW I get it!

    It wasn’t simply that Taaffe wanted a little more 15-minutes-of-fame…it was that he wants his deposition taken by NBC. He wants to be the star of the NBC thing.

  9. truthteller says:

    he absolutely said coons…it was pretty lame to ignore it.

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