Ignorance doesn’t mix with AK47s

September 11, 2015

The Oath Keepers are on their way to Kentucky to protect Kim Davis from United States District Court Judge David Bunning. When he released her from jail on Tuesday, he ordered her not to interfere with her deputy clerks issuing marriage licenses to same sex couples. She said she would not do anything that would violate her conscience. She would be in compliance with his order if she does not do anything when a deputy clerk issues a marriage license to a same sex couple. Only she knows whether standing by and not doing anything, if a deputy clerk issues a license, would violate her conscience and cause her to act.

Stewart Rhodes, the founder of Oath Keepers, explains why he believes his group of armed former cops and military veterans should go to Rowan County to protect her. Raw Story reports,

In a press release published on their website, the group says they have been in contact with Davis’ attorney, Mat Staver, and are acting because Judge David Bunning “grossly overstepped his bounds and violated Mrs Davis’ due process rights, and in particular her right to a jury trial.”

Rhodes does not know what he is talking about. Davis did not have a right to a jury trial or any sort of trial because he held her in contempt for refusing to comply with his order to issue marriage licenses. She was accorded due process of law because she was given an opportunity to explain why she refused to issue the licenses pursuant to Obergefell v. Hodges and she was permitted to appeal his decision rejecting her argument to the Sixth Circuit and to the United States Supreme Court. After she lost those appeals and still refused to issue the licenses, he ordered her to show cause why he should not hold her in contempt of court. He held her in contempt when she presented the same lame losing argument. Freedom of religion is not a license for an elected official to discriminate against others in violation of their Fourteenth Amendment right to equal protection of the laws.

He ordered her to jail until she or her deputy clerks issued the marriage licenses that the plaintiff couples had requested. He released her after those licenses were issued.

This situation is not complicated. If another same-sex couple applies for a marriage license and she refuses to permit her deputy clerks to issue them a license, she can reasonably expect Judge Bunning will again order her to appear in court to show cause why he should not hold her in contempt. If she offers the same lame excuse, he will order her back to jail until the license is issued. That is the nature of civil contempt and that is why judges and lawyers say that the person held in contempt has the key to the jailhouse door.

Rhodes and company want to ride to her rescue with AK47s and recreate a Bundy ranch standoff scenario. They would be better served if they put down their guns and read up on civil contempt.


Mark O’Mara engineers snipe hunt to avoid responsibility for publicizing irrelevant evidence

May 29, 2013

Wednesday, May 29, 2013

Good afternoon:

NBC News reported late yesterday:

A Florida judge ruled Tuesday that George Zimmerman’s defense team cannot mention Trayvon Martin’s suspension from school, prior marijuana use, text messages or past fighting during opening statements at next month’s trial.

Judge Debra Nelson said that during the trial she will consider motions to admit details as evidence on a case-by-case basis, outside the presence of jurors who will decide if Zimmerman is guilty of second-degree murder in the shooting death of Martin.

Although this statement is technically correct, it also is misleading because Judge Nelson actually concluded that the evidence was irrelevant and inadmissible. That is why she granted the State’s motion in limine to prohibit the defense from mentioning any of those things during jury selection and opening statement.

The only reason she might change her mind is if the State were to open the door by introducing evidence of good character. That is not going to happen because Trayvon’s character, whether good or bad, is not an issue in this case. BDLR has no reason to introduce evidence of good character and I am certain that he was not planning on doing that because he knows that good character evidence is irrelevant. Since the defense cannot rebut something that does not happen, the jury will not hear any of this information.

That is not the end of the story, however, because the irrelevant information in question was obtained from Trayvon Martin’s phone and it is the subject of a defense motion for sanctions and request for a judicial inquiry that Judge Nelson has scheduled for June 6th, the same day as the Frye hearing regarding the admissibility of expert testimony identifying the person who uttered the terrified death shriek.

I do not believe Judge Nelson is going to find that BDLR withheld evidence from the defense. The evidence was recorded on Trayvon’s phone in binary code and a copy of that raw data was disclosed to the defense sometime in late January. O’Mara did not hire an expert or purchase a software program that can translate that code into plain English.

A few weeks ago, O’Mara was contacted by an attorney who represents Ben Kruibdos, the Director of Information Technology for the Fourth Judicial Circuit. The attorney is Wesley White.

The Miami Herald reports:

White led the Nassau County state attorney’s office before resigning in December, citing differences of opinion with Corey. He is now in private practice.

White said the photos Kruidbos retrieved were of a hand holding a gun and one depicted drugs. The content of the text messages wasn’t specified.

“I’m an officer of the court and I’m obliged to inform the court of any misconduct or any potential misconduct coming before the court. Whether it’s by the defense or prosecution,” White said.

Apparently, Kruibdos extracted the two photographs and possibly the text messages from the binary code and gave them to BDLR who did not pass them on to O’Mara.

Does that constitute a discovery violation or a tempest in a teapot?

I believe it is a tempest in a teapot, so long as BDLR turned over the raw data.

Judge Nelson has already ruled that the evidence is not relevant or admissible and it certainly is not exculpatory.

We will have to wait and see how the hearing turns out, but this looks like another snipe hunt instigated by O’Mara to distract everyone from holding him accountable for publicly disclosing information that should not have been disclosed.

_________________________________________________

I hate to hassle people for money, but contributions have been lagging this month.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

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Fred


Defense mendacity in Zimmerman case is disgusting

May 24, 2013

Friday, May 24, 2013

Good morning:

George Zimmerman’s attorneys, Mark O’Mara and Don West, have unintentionally confirmed this week that they have no defense to present on his behalf by knowingly and intentionally publishing false, irrelevant and inadmissible information about Trayvon Martin to incite white racists to denounce him as a pot smoking black thug who deserved to die.

I used the word “confirmed” because three weeks ago the defendant appeared in open court and waived his right to an immunity hearing. The mixture of false and misleading information released yesterday is not a defense to second degree murder. It’s deliberate character assassination by false statement and innuendo of an unarmed teenager who was stalked, restrained and shot through the heart while screaming for help.

Here’s LLMPapa:

Last I heard, skipping school, pot smoking and participating in refereed fights between equal combatants is not a death penalty offense.

In other news, the defense attorneys filed a flurry of forgettable motions and responses to prosecution motions which, like snowflakes in April, are destined to melt when they hit the ground.

I begin with Donald West’s frivolous, dishonest and intentionally misleading reefer-madness motion that he filed earlier this week arguing that a trace amount of marijuana in Trayvon Martin’s autopsy blood should be admissible to prove that he was the aggressor even though he was unarmed and the defendant stalked, restrained and shot him in the heart.

The defense motion to continue:

1. cites no authority,

2. claims he needs to investigate Dr. Reich (the State’s audio expert who identified Trayvon as the person screaming for help), which takes about an hour if you google him,

3. claims other unnamed experts told him Dr. Reich’s opinion is based on science that has fallen into “disrepute,”

4. fails to support this assertion with an affidavit from one or more of these experts, and

5. claims he needs time to find an expert to hire even though he is supposedly in touch with all of these experts.

This motion is ridiculous and will be denied because it fails to document a reason for a continuance.

O’Mara’s motion for sanctions against Bernie de la Rionda for not disclosing the evidence that the defense obtained from Trayvon’s phone and published in its 3rd evidence dump, is frivolous because the so-called exculpatory evidence that he claims BDLR withheld in violation of the Brady rule is not exculpatory.

Therefore, the Brady rule does not apply and this motion should be denied.

West’s reply to the State’s motion to exclude opinion evidence about the defendant’s guilt or innocence generally admits that witness opinions about the guilt or innocence of a defendant are inadmissible but warns that if the State attempts to attribute the delay in arresting and charging the defendant (which isn’t relevant either), then the State will have opened the door to allowing the defense to call SPD cops to justify what they did.

I don’t believe this issue will come up as it is irrelevant to whether the defendant murdered Trayvon.

Sideline mini-trials about marginally relevant or irrelevant issues are exactly what evidence rule 403 is designed to prevent.

West’s 2-page reply to the State’s motion to exclude the defendant’s self-serving hearsay statements, which does not cite a case, generally agrees that many of the defendant’s statements are hearsay, if offered by the defense, but disagrees with the State’s argument that none of the defendant’s statements are admissible under the res gestae exception or some other exception to the hearsay rule. West asks Judge Nelson to reserve ruling until the issue comes up in trial.

This is a sneaky response because West wants to be able to ask a leading question seeking agreement from a witness that the defendant said XYZ. For example, he might ask SPD Investigator Serino this question:

George told you that he killed Trayvon in self-defense, didn’t he?

Bernie de la Rionda (BDLR) would object to the question because it contains an inadmissible self-serving hearsay statement.

Judge Nelson would sustain the objection, but she cannot unring the bell, so to speak. The jury would have heard the defendant’s inadmissible statement.

He also would probably like to mention that self-serving hearsay statement during the defense opening statement to the jury or maybe during jury selection.

The purpose of the State’s motion in limine regarding the defendant’s self-serving hearsay statements is to prevent those events from happening, and I am reasonably certain Judge Nelson has seen this trick before and is savvy enough to see through West’s tactical deception.

Therefore, I expect she will grant the State’s motion.

BTW, the res gestae exception that West mentions is a limited exception to the hearsay rule similar to the present-sense-impression exception in which the hearsay statement about an event occurs as the event happens. Thus, the statement is part of the event itself or the res gestae and cannot be excised from it.

The State’s motion in limine seeking an order prohibiting the defense from mentioning the voice stress analysis test that the defendant took should be granted because that’s the legal rule in Florida and elsewhere. The rule is based on the lack of general agreement among scientists that this type of test can consistently produce accurate and reliable results.

In other words, the test violates the Frye Rule.

Judge Nelson should grant this motion.

The State’s 3rd motion for a gag order asks Judge Nelson to put an end to the defense effort to poison the jury pool by assassinating Trayvon Martin’s good character with false evidence and innuendo publicized after the jury pool of 500 people have received their notices to report for jury service on June 10, 2013.

It is no accident that the defense waited until after the 500 potential jurors were served with their notices, but before they report for jury service. Therefore, this was a deliberate tactic to create an unringing the bell problem regarding false, irrelevant, and inadmissible evidence.

A gag order will not unring the bell.

This is quite possibly the sleaziest tactic that I have ever seen. To intentionally poison a jury pool a couple of weeks before trial with false and misleading information about the victim of a homicide calculated to incite and unite White racists to approve of the execution of an unarmed Black teenager is astonishing.

These two lawyers are fortunate that I am not Judge Nelson because I would jail them for contempt of court and file complaints against the bar association requesting their disbarment from the practice of law.

_________________________________________________

I hate to hassle people for money, but contributions have been lagging this month.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred


Donald West files frivolous, dishonest and intentionally misleading document in Zimmerman case

May 22, 2013

Wednesday, May 22, 2013

Good afternoon:

The defense filed a silly and offensive motion yesterday in the Trayvon Martin murder case titled, Defendant’s Reply to State’s Motion for Protective Order/Motion in Limine Regarding Toxicology.

I call it silly and offensive because it makes the absurd argument that the presence of a trace amount of marijuana in Trayvon Martin’s autopsy blood sample makes it more probable than not (i.e., the test for relevancy) that Trayvon Martin attacked the defendant without provocation and attempted to beat him to death with his bare hands.

Welcome back to 1936 and Reefer Madness. Come on, son!

The State seeks to exclude any testimony regarding Trayon Martin’s toxicology report that shows the use of marijuana around the time of his death, February 26, 2012. As part of the autopsy protocol, the Medical Examiner submitted Trayvon Maritin’s blood for laboratory analysis. Among the findings includes a positive level for THC and its metabolites. The active THC was measured at 1.5 ng/ml whereas the metabolite was measured at 7.3 ng/ml. This level is sufficient to cause some impairment (although it is connsidered to be less than that required for a DUI arrest) according to the state’s toxicologist, Dr. Bruce Goldberger. At his deposition, Dr. Goldberger cited to the research of Dr. Marilyn Heustis, who studies the residual effect of marijuana on cognitive functioning. Dr. Heustis has found that measurable impairment continues for days or weeks in chronic users. Dr. Godlberger opined that Trayvon Martin may have used marijuana within a couple of hours of his death or it could have been longer than that depending on whether Trayvon Martin was chronic user or an occasional user. From other evidence in the case, it is known that Trayvon Martin brought marijuana with him from south Florida to use while he was in Sanford and he used it at least one time after arriving in Sanford prior to his death. Trayvon Martin was suspended from school for possessing a baggie containing marijuana residue and was known to smoke marijuana with his friends.

In George Zimmerman’s NEN call to the police, he described the person later identified as Trayvon Martin, as appearing as though “he was on drugs.” Additionally, on close inspection of Trayvon Martin’s appearance at the 711, where he was recorded on video within ah hour of his death, he “sways” at the counter as if he is under the influence of some substance. Taken altogether it is likely that Trayvon Martin was under the influence of marijuana at the time of his death and that his thinking and judgment were impaired, at least to some degree. This is relevant evidence for the jury to consider when it evaluates TM actions that night, and the jury should be allowed to give whatever weight it believes it should.

There is so much wrong here that I almost do not know where to begin.

First, West should have attached an affidavit from Dr. Heustis. He did not, so I checked her out on PubMed. A search using “Marilyn A. Heustis and cognitive impairment,” pulled up two articles:

1. Cannabis effects on driving skills.

The Summary states:

Differences in study designs frequently account for inconsistencies in results between studies. Participant-selection bias and confounding factors attenuate ostensible cannabis effects, but the association with MVA often retains significance. Evidence suggests recent smoking and/or blood THC concentrations 2-5 ng/mL are associated with substantial driving impairment, particularly in occasional smokers. Future cannabis-and-driving research should emphasize challenging tasks, such as divided attention, and include occasional and chronic daily cannabis smokers.

2. The dose effects of short-term dronabinol (oral THC) maintenance in daily cannabis users.

The Conclusion states:

Dronabinol’s ability to dose-dependently suppress cannabis withdrawal may be therapeutically beneficial to individuals trying to stop cannabis use. The absence of gross cognitive impairment or side effects in this study supports safety of doses up to 120mg/day. Continued evaluation of dronabinol in targeted clinical studies of cannabis treatment, using an expanded range of doses, is warranted.

(Emphasis supplied)

Ahem! Now we know why there is no affidavit from Dr. Heustis.

Next, we have,

Dr. Godlberger opined that Trayvon Martin may have used marijuana within a couple of hours of his death or it could have been longer than that depending on whether Trayvon Martin was chronic user or an occasional user.

Not terribly helpful, but wait . . .

From other evidence in the case, it is known that Trayvon Martin brought marijuana with him from south Florida to use while he was in Sanford and he used it at least one time after arriving in Sanford prior to his death. Trayvon Martin was suspended from school for possessing a baggie containing marijuana residue and was known to smoke marijuana with his friends.

The famous reliable witness known as “It” knows that Trayvon brought marijuana with him. Funny how this fella named “It” failed to provide an affidavit or even an address. Oh, well.

Next,

In George Zimmerman’s NEN call to the police, he described the person later identified as Trayvon Martin, as appearing as though “he was on drugs.” Additionally, on close inspection of Trayvon Martin’s appearance at the 711, where he was recorded on video within ah hour of his death, he “sways” at the counter as if he is under the influence of some substance.

Ah, yes. The always accurate and reliable eyewitness George Zimmerman, who would never think of giving a self-serving statement.

So, now we are down to swaying at the counter.

Yeah right.

How about the conclusion:

Taken altogether it is likely that Trayvon Martin was under the influence of marijuana at the time of his death and that his thinking and judgment were impaired, at least to some degree. This is relevant evidence for the jury to consider when it evaluates TM actions that night, and the jury should be allowed to give whatever weight it believes it should.

Put another way, this legal pleading is pure speculation based on a dishonest premise and no evidence.

What really pisses me off about Mr. West’s pleading is the underlying and unspoken assumption that Trayvon Martin deserved to be killed because Mr. West believes he was high on marijuana.

Don West should be assessed terms for contempt of court by filing a frivolous, dishonest and intentionally misleading reefer-madness document.

_________________________________________________

I hate to hassle people for money, but contributions have been lagging this month.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred


Zimmerman: Judge Nelson Should Fine Mark O’Mara $1,500 for Publicizing his Motion for Prophylactic Sequestration

October 24, 2012

I believe Judge Nelson should fine Mark O’Mara $1,500 for posting his Motion for Prophylactic Sequestration of Witnesses in the Zimmerman case on his website.

I criticized this bizarre motion in Zimmerman: Defense Motion for Prophylactic Sequestration of Witnesses Reaches a New Low.

I said,

First, O’Mara is revealing the opinions of cops overseeing an investigation. Their opinions are irrelevant and inadmissible. The evidence is whatever it is and it alone constitutes probable cause to believe a crime was committed or it does not.

Second, revealing their opinions in a motion is an underhanded way of creating an excuse to publicize that they opposed charging Zimmerman with a crime.

Third, if they were genuinely concerned about a need to order witnesses to not collaborate with each other, they should have filed the motion under seal.

Fourth, it would have been in the best interest of the defense to have the witnesses collaborate with each other so that they all objected to filing criminal charges, but that sounds like what they were going to do anyway. Therefore, there was no need for the relief he sought in the order.

I concluded:

For all of these reasons, seems pretty obvious to me that the real purpose of the motion was to publicize what should have been kept private; namely, that the brass did not want to charge Zimmerman.

The more that I think about this motion the more irritated I become.

The scope of permissible discovery is very broad and not only includes the right to discover all information relevant to the lawsuit; it also includes the right to discover all information that might reasonably be expected to lead to the discovery of relevant information.

Because the scope of permissible discovery is so broad, there have to be some limitations on what the lawyers can do with the information they obtain through discovery. Keeping the information private is one such limitation.

Let us now take a look at depositions.

Lawyers depose (i.e., question) the opposing party’s witnesses under oath in the office of the lawyer who represents the opposing party. Other than the two lawyers and the witness, the only person present is a certified court reporter who administers the oath to the witness and records everything said by the lawyers and the witness during the deposition.

There is no judge to rule on objections. Instead, objections are noted for the record and the witness answers the question. Later on, if the trial court orders the deposition published and it is read in open court, the judge can consider the objection and rule on it. Depending on the ruling, the answer given by the witness during the deposition may or may not be read in open court.

In extraordinary circumstances during a deposition, the lawyers may suspend it to go to the courthouse to seek a ruling on an objection before resuming. The basic idea, however, is to allow the lawyers to conduct a deposition to create a thorough and private record of witness responses.

I emphasize the importance of privacy because the scope of a deposition may intrude into sensitive and private matters that might embarrass a witness, or protected matters such as trade secrets that might compromise a business, if publicized.

O’Mara’s very public revelation, in his motion for prophylactic sequestration of witnesses, of what the witness disclosed during the deposition about the opinions of the members of the group of Sanford Police Department officials regarding whether to charge Zimmerman with a crime is a major game misconduct because he revealed private information that most of the members of that group did not believe Zimmerman should be charged. Not coincidentally, that information could benefit Zimmerman by influencing prospective jurors to believe that Zimmerman should not have been charged with a crime, let alone second degree murder.

Why is that bad?

The answer is that a jury verdict must be based only on the evidence admitted in court. The opinions of the police officials are not evidence and have no evidentiary value. The rules of evidence do not permit that type of testimony to be presented at trial because it might influence jurors to base their verdict on opinions or speculation of the police officials rather than the evidence.

O’Mara knows this or should know it and this is why he never should have filed his motion for prophylactic sequestration of witnesses. BTW, this is an extraordinary and unusual request that I have never heard of and I do not believe there is any legal authority that supports it. Nevertheless, he was so eager to publicize the dissenting opinions of the police officials that he filed the motion without citing any legal authority authorizing Judge Nelson to grant the relief he requested, despite a rule that requires a lawyer to cite legal authority in support of any request to have the trial court do something.

Then he published his motion on his website for all the world to see.

This is why I am so offended by what he did.

I would be furious, if I were Judge Nelson and I would strike the motion, hold him in contempt, and fine him $1,500. I would do this in open court at Friday’s hearing for all the world to see. I also would warn him that if he does it again, I would put him in the slammer for a week.

Then I would ask him to give me a reason why I should not impose a gag order as requested by the prosecution.

I would, of course, give due consideration to the Florida Sunshine Law and the public’s right to know what is going on. I would probably end up denying the motion for the gag order without prejudice. That would allow the prosecution to refile it, if it should decide to do so.

BOTTOM LINE: O’Mara needs to stop trying his case in the Court of Public Opinion.


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