Defendant requests Trayvon Martin’s girlfriend’s medical records

March 4, 2013

Monday, March 4, 2013

The following motions are scheduled to be heard by Judge Nelson tomorrow beginning at 9 am EST.

1. Defendant’s Motion for Specific Discovery from the FDLE

This is a request for witness biographies (cover sheets) for each witness that, in addition to name, address, and contact information, list social security numbers, Experian credit reports, driving record, non-conviction arrest information and social media sites to which the witness belongs.

This is the FDLE’s memorandum in response to defendant’s request. The prosecution adopts the response as its own.

Comment: Good luck with that. Every criminal defense lawyer would love to have that information, but don’t bet the ranch that this request will be granted

2. Defendant’s Demand for Specific Discovery (3 videos)

Comment: This is a mystery request as I do not know what videos the defense is requesting.

3. Defendant’s Motion for Subpoena Duces Tecum to State Witness, Civilian Witness 8

MOM is requesting DD’s medical records “regarding any and all medical services rendered during the period 2/26/2012 through 4/30/2012” on the ground that the records “are reasonably calculated to lead to relevant admissible evidence.”

This is a conclusory request in the language of the rule that does not explain why he believes those records “are reasonably calculated to lead to relevant admissible evidence.”

Comment: I believe this request is a mean-spirited invasion of privacy to intimidate the witness and I would deny it in the absence of a reasonable explanation why MOM believes those records “are reasonably calculated to lead to relevant admissible evidence.” If Judge Nelson grants this motion, I think she will insist on reviewing the records in camera (chambers) and selecting what the defense will receive, if anything, according to the procedure she followed with the prosecution’s request for the defendant’s medical records.

Here is Judge Nelson’s 6-page order denying the defense motion to depose Benjamin Crump.

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Zimmerman: State Files 9th Supplemental Discovery List

November 9, 2012

Michael Winter at USA Today reported last night that Zimmerman gets FBI files on Trayvon, more phone records.

He refers to new discovery released by the State pursuant to orders issued by Judge Nelson and requests by the defense. The article links to the State’s document titled, State’s 9th Supplemental Discovery.

I think the title of the article is misleading because the FBI never investigated Trayvon Martin as a suspect. Instead, the FBI investigated Zimmerman for committing a possible hate crime when he killed Martin.

As far as I know, that investigation remains active.

I do not know if the FBI is investigating the Sanford Police Department for possible civil rights violations. I believe such an investigation is warranted, but can neither confirm nor deny it.

I believe these FBI reports supplement reports released earlier and will be released to the public within the next few weeks after the defense has had an opportunity to review them.

Zimmerman’s medical records from the clinic are also in this dump. Judge Nelson reviewed the clinic’s records in camera and approved this set for release to the State and the public.

For additional information, please review the list.


Zimmerman: Lawyers Lawyers Everywhere — Important Hearing Today at 1:30 pm EDT

October 19, 2012

Lawyers for prosecution, defense and various news media organizations will be in court this afternoon before Seminole County Circuit Court Judge Debra Nelson to argue about various discovery related issues in the Zimmerman case. This should be interesting, so you may want to pay attention.

The always reliable and accurate Frances Robles of the Miami Herald has the breakdown:

Assistant State Attorney Bernie de la Rionda filed papers Thursday in Seminole County Circuit Court asking a judge to muzzle defense attorney Mark O’Mara, whom the prosecutor accuses of taking to the Internet to try his case in the media.

“Unless defense counsel stops talking to the media about the case, in person or by use of defendant’s website, it will (be) more difficult to find jurors who have not been influenced by the media accounts of the case,” de la Rionda said. ” … An impartial jury could never be seated.”

De la Rionda asked Circuit Judge Debra Nelson to issue a gag order, which would silence the defense, prosecutors, law enforcement and any of the lawyers’ employees. If the judge agrees, lawyers and investigators would not be allowed to make any statements outside the courtroom about the case, evidence, credibility of witnesses or possible sentences. If the judge allows it, they would even be kept from opining about Zimmerman’s guilt or innocence.

I am not surprised by the State’s motion. The defense has been trying its case in the Court of Public Opinion for months now and the prosecution has at long last run out of patience.

Of course, the prosecution has benefited more than the defense from this strategy. After all, who can forget George Zimmerman’s appearance on the Sean Hannity Show. His smirks, denial of regret, and shifting of responsibility for Trayvon Martin’s death onto God Almighty Himself has to be one of the greatest moments in network television history for this still young second decade.

Although there may still be more gold to be mined in the proverbial “them thar hills,” I think the prosecution comprehends the notion of diminishing returns and wants to cash-in its winnings and move on to other pleasantries of a somewhat more formal nature.

The defense and media lawyers will be objecting to the motion and I do not expect Judge Nelson will seriously consider granting it. Florida’s Sunshine Law is an impressive barrier to a gag order. I predict she will deliver a sternly worded rebuke to defense counsel and we shall see what we shall see.

Judge Nelson also will be hearing argument concerning the defense request to subpoena Trayvon Martin’s middle school and high school records. The State objects to the request on the grounds that the information in the records, whether good or bad, is protected from disclosure by privacy statutes and it would be irrelevant and inadmissible at trial. Prosecutor Bernie de la Rionda called it a “fishing expedition.”

As I have said before, I believe the rules of evidence permit the defense to introduce evidence of a pertinent character trait in support of Zimmerman’s claim that Martin was the aggressor. For example, if Trayvon Martin was known to be an aggressive bully who started fights, the defense would be permitted to bring that out at trial. Specific acts of misconduct would not be admissible, however. The defense would be limited to introducing the evidence as a character trait. Assuming such evidence exists, which I doubt, it might be in the school records. Therefore, I believe the defense has a legitimate reason to want to review the records.

The problem is that the defense may post Martin’s records on its website, regardless whether they contain any reference to misconduct of any kind, whether admissible or not. The State already did that with George Zimmerman’s school records and has apologized for doing so, claiming it was a clerical mistake. Now it seeks to prevent the defense from administering a dose of what’s good for the goose is good for the gander.

There is a solution to this sort of problem and I have previously recommended it. It’s called in camera review. No, it does not involve a camera. In camera review is a legal term that means in chambers. That is, the school records would be filed under seal and Judge Nelson would review them in her chambers and decide whether they contain evidence the defense has a right to review. She discloses it to both sides, if they do. Presumably, she also would order both sides not to publicize the records and might even threaten to hold them in contempt of court, if they were to violate the order.

As I said, I doubt the records contain the information that the defense has a legitimate reason to seek, so this dispute will likely be more like a proverbial tempest in a teapot. If there is any substance to it, there is a solution to deal with the records and protect privacy that has worked in the past.

The State also wants Judge Nelson to order the defense to file its requests for subpoenas in the future under seal so that it cannot publicize them on its website before submitting them for the court’s approval. This argument is part of the prosecution’s strategy to stop the defense from trying its case in the Court of Public Opinion.

This is another issue that Judge Nelson can handle with a stern warning and threat to use her contempt powers. I predict she will do so rather than establishing a special rule for O’Mara, as opposed to all other defense counsel, when seeking court approval for subpoenas.

The prosecution also is seeking George Zimmerman’s medical records at the clinic where he sought a permission-to-return-to-work authorization the day after the shooting. The defense objects on privacy grounds. I think the defense likely waived doctor-patient privilege and privacy concerns when it released a portion of his records and has intimated that his ADHD condition might explain some of his inconsistencies.

Finally, there is an interesting issue about the discoverability of Trayvon Martin’s social media accounts (Facebook and Twitter). A lawyer representing Facebook has refused to comply with the subpoena.

Once again, here’s Frances Robles,

On Monday, Facebook lawyers sent a letter to O’Mara vowing to fight the subpoena. Martin’s social-media account, Facebook attorney Furqan Mohammed said, is not only irrelevant to the case, but by law cannot be released. Mohammed said federal law protects the account information, and added that arguing the issue would have to be done in a California court.

“We think the attorneys for Facebook are essentially saying the same thing we have been saying all along: Trayvon’s Facebook and social media are completely irrelevant,” said Benjamin Crump, an attorney for Martin’s family. “All of these issues are distractions that take the focus off George Zimmerman.”

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Zimmerman: The Court Should Consider Appointing a Special Master to Review Discovery Documents

September 10, 2012

Frances Robles of the Miami Herald reports today:

George Zimmerman’s defense lawyers will subpoena Facebook, Twitter and Miami-Dade schools in a widespread pursuit of clues to suggest that Trayvon Martin could have thrown the first punch on the night he was killed, a sign that attorneys are going into attack mode in preparation for their case.

A series of notices were sent last week to Miami-Dade Schools Superintendent Alberto Carvalho and the principals of the schools Trayvon attended, advising that subpoenas for copies of the slain teen’s academic and attendance records would be issued in 10 days’ time.

Similar warnings are expected to be sent this week to the popular social networking sites where Trayvon maintained accounts, defense attorney   Mark O’Mara said.

[snip]

The subpoenas demand disciplinary records, suspension notices, class schedules, attendance and tardiness records, FCAT and SAT test scores, report cards, as well as any information about whether Trayvon belonged to any clubs or sports activities.

O’Mara is fishing for bad character evidence to support Zimmerman’s claim that Martin was the aggressor and acted like a psycho gangsta.

I discussed the admissibility of bad character evidence in my Friday evening post, Zimmerman: What Kind of Character Evidence will be Admissible at Trial?

I said,

“This rule allows Zimmerman to introduce any competent and relevant evidence he can find that supports his claim that Martin is a psycho-gangsta, a person who is physically aggressive and likes to start fights. Such evidence, assuming he can find any, would support his claim that Martin turned into a psycho-gangsta who suddenly appeared out of nowhere, confronted him as he was minding his own business walking back to his truck, sucker-punched him in the nose for no apparent reason, and tried to beat him to death with his bare hands.

I am not aware that any such evidence exists and I doubt he will find any. However, assuming for the sake of argument, that he does, that will open the door to permit the prosecution to introduce evidence that Zimmerman acts like a psycho-gangsta.

I think Zimmerman would be well advised not to open that door.”

I understand and sympathize with his parent’s concern that the defense, which has exhibited a focused intent on trying its case in the media, will use the information it finds, no matter how innocuous, to assassinate Martin’s character. Zimmerman’s supporters, for example, have waged a racist and no-holds-barred campaign of distortion, vicious lies, and character assassination against Martin, his family, their supporters, and anyone who challenges George Zimmerman’s credibility. To expect them to do less with any information obtained with these subpoenas for school-records, Facebook, and Twitter accounts would be naive. Nevertheless, if there is any evidence in those records that Martin was an aggressive bully, I think he is entitled to it.

But what about other sensitive private information, assuming such information exists? What about information protected by privacy laws?Should private information be disclosed and publicized to become fodder for the pro Zimmerman crowd to continue its irresponsible and reprehensible attacks?

A possible solution would be to use the in camera review process to screen information. The defense and prosecution agreed to allow the judge to do an in camera review of Zimmerman’s medical records. Why not also rely on that process for the records O’Mara is requesting?

There is no great mystery about what evidence would be admissible, if it exists. Therefore, in camera review appears to be an ideal and fair solution to assure that the defense gets what it has a right to have and nothing more.

The Court also might want to consider appointing a Special Master to handle all in camera document review. This would free up the judge to handle the usual duties without becoming over burdened and possibly prejudiced against one side or the other due to the document review.


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