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.

_________________________________________________

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Fred


Polygraph Test Result in Zimmerman Case is Unreliable and Useless

July 7, 2012

The Sanford Police Department concluded that George Zimmerman passed a voice stress analysis test, which is a type of polygraph test.

How much credence should we place on the result and will it be admissible in court?

Although police routinely use polygraph tests when questioning a suspect in order to confront the suspect, if the test indicates he is attempting deception while responding to a question, the United States Supreme Court and many other state supreme courts have held that polygraph test results are not admissible in court because they are not sufficiently accurate and reliable.

For background information on polygraph testing, go here.

Florida excludes polygraph test results. Therefore, the results of Zimmerman’s test will not be admissible at Zimmerman’s trial.

Nevertheless, many members of the public now know that he passed a polygraph test, so let us take a look at his test and see what conclusions we can draw about it.

Yamiche Alcindor and Marisol Bello reporting for USA Today said:

Zimmerman was asked nine questions, including two related directly to the shooting: “Did you confront the guy you shot?” the tester asked. “No,” Zimmerman responded. “Were you in fear for your life, when you shot the guy?” the tester asked. “Yes,” Zimmerman said. The examiner concluded that Zimmerman “told substantially the complete truth.”

Ron Grenier, a former FBI agent and lie detector expert, said the voice stress analysis test is not as reliable as a polygraph test. Also, he said, it’s unclear what the examiner meant by “confront.” Further, such tests don’t measure a person’s state of mind or fear at some other time, he added.

“He may have convinced himself that he was in fear of his life, but whether or not he was is not definitive,” Grenier said.

Zimmerman’s responses would be more meaningful, he said, if he had been asked, ” ‘Did Trayvon Martin attack you and knock you to the ground?’ Or ‘Was Trayvon Martin on top of you hitting you before you shot him?’ ”

Joe Navarro, a former FBI agent who teaches interviewing techniques at Saint Leo University, agreed. “You have to ask precise questions,” he said. “You want to know at what point you feared for your life.”

I agree with Ron Grenier’s criticism that the question, “Did you confront the guy you shot?” is an improper question.

The question is vague because it is too subjective to be of any use in determining whether GZ followed TM and was the aggressor. Note that the legal test for self-defense depends on the objective circumstances of the encounter between GZ and TM and whether a reasonable person in that situation would have concluded that it was necessary to use deadly force to prevent imminent death or grievous bodily harm.

A confrontation can be verbal or physical and GZ may have believed or convinced himself, without any rational basis for doing so, that TM’s presence in the neighborhood and his attempt to elude GZ justified GZ in attempting to prevent him from getting away. Therefore, GZ might have perceived any resistance by TM as a confrontation, even if TM were merely standing his ground and using force to defend himself.

Similarly, the test result does not help us determine if GZ was the aggressor.

I also agree that the question, “Were you in fear for your life, when you shot the guy?” is improper because whether he was in fear of losing his life when he shot and killed TM does not help us determine if a reasonable person in his situation would have been in fear of losing his life.

The test result is basically useless because to decide this case the ultimate finder of fact will have to decide what each person did and whether a reasonable person in GZ’s situation would have done what he did.

Finally, even if proper questions had been asked, there are any number of examples of guilty people who passed polygraph tests. One person with whom I am familiar is my former client Gary Ridgway, the Green River Killer, who passed a polygraph in 1987 when he denied being the Green River Killer. He was released and continued killing until he was arrested in the fall of 2000, after DNA test results implicated him in several homicides.

Due to their proven inaccuracy and lack of reliability, I do not support using polygraph tests for any purpose and I think police departments and all employers should be prohibited from using them.


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