Zimmerman defense stumbled into money trap

May 19, 2013

Sunday, May 19, 2013

ChrisNY~Laurie said,

Why haven’t we seen any reciprocal discovery? I’d like to see what the defense has turned over to the State. Do we not get to see reciprocal discovery?

The Defense has expert witness’ that they would like to call via video conferencing at the next hearing, and filed a motion for approval. Does the Judge approve or deny this motion before the next hearing date or wait and tell them during the hearing when she gets to that motion? I haven’t even seen a motion in reply from the State yet, so maybe they have no objections to this. I don’t see how they don’t considering the defense did not name these experts, unless they did through emails or something.

Let’s not place the cart before the horse. Judge Nelson first has to decide whether to grant the defense motion for a Frye hearing. She will decide that motion at the hearing on May 28th.

I do not believe she will grant the motion because O’Mara has not made a proper showing. He needs affidavits from experts asserting that the technology/methodology used by the prosecution’s experts is not generally accepted in the relevant scientific community (i.e., audiologists). He hasn’t done that.

If she were to grant the motion, however, I do not believe she would conduct it via video conferencing. Cross examining someone on a video screen is not the same as cross examining them in person when the witness is not on his own turf with support at the ready off camera. I do not believe Bernie de la Rionda would agree to O’Mara’s request. I certainly would object if I were the prosecutor. I do not believe Judge Nelson would grant O’Mara’s request over de la Rionda’s objection.

O’Mara appears to be caught up in a money trap caused by frivolous expenditures of internet contributions and now he cannot afford experts.

Too bad, so sad.

The answer, as I have been suggesting for several months, is to attempt to get the defendant declared indigent so that the court will pay for the experts, but O’Mara and his client do not want to go there.

I suspect the reason is they do not want the internet fund shut down and turned over to the Court for reimbursement.

Greed and stupidity are quite the double whammy.

They have only themselves to blame.

_________________________________________________

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

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O’Mara out of time in Zimmerman case

April 16, 2013

Tuesday, April 16, 2013

Abbyj said,

Omar will ride the PayPal buckaroo to the bitter end in an effort to squeeze out every last cent. He is hoping for a massive windfall, as fogen received early on. Without any hope of a great fortune appearing, O’Mara will then stand before Judge Nelson, wring his hands, and whine, “I haven’t had the financial resources to hire experts . . . ” Could fogen use this as grounds for an appeal?

Good question.

We begin at the beginning. Appellate courts hate piecemeal appeals. With one notable exception, they will refuse to review a case unless the circuit court has entered a final judgment terminating it. The exception is the writ procedure that permits a party to seek extraordinary relief from a specific order issued by a judge in the circuit court that, in effect, functions as a final order in a case depriving the losing party of an opportunity to present its case and argument in the circuit court.

The defense used the writ procedure to recuse Judge Lester (mandamus) and is now using it (certiorari) in an attempt to get an order vacating (setting aside) Judge Nelson’s order denying the defense motion to depose Benjamin Crump. I do not believe this effort will be successful because I think Judge Nelson made the correct legal decision. Since other witnesses were present when Crump interviewed Dee Dee to determine the cause of Trayvon’s death on behalf of his clients, Tracy Martin and Sybrina Fulton, his efforts constitute protected attorney work product that is not subject to disclosure. Moreover, the defense team cannot show they were prejudiced by Judge Nelson’s order because they can interview Dee Dee and the witnesses who were present. Therefore, Judge Nelson’s decision is not a final judgment or order that functioned like a final judgment by depriving the defense of its only opportunity to discover potentially favorable information for the defense.

With regard to your specific question, the defense would have to file a motion requesting some form of financial assistance from the court to pay for something that the defense has a right to do, but cannot afford to do. The defendant has a Sixth Amendment right to effective assistance of counsel at public expense, if he cannot afford counsel. The right to effective assistance of counsel at public expense, includes paying reasonably necessary expenses for investigators and expert witnesses.

Mark O’Mara and Don West have agreed to work pro bono, so they will not be asking the court to compensate them for the time they spend working on the case. However, their agreement to work pro bono does not mean that they also have agreed to pay the costs that will be incurred to defend their client. Specifically, the court cannot require them to pay experts and investigators.

The internet donations were supposed to cover those costs. According to O’Mara, however, the defense is underwater by approximately $10,000. I doubt that includes the $28,000 claim for services rendered by the security company, unless O’Mara has paid down the balance. Therefore, the defense may be in more serious financial trouble.

Judge Nelson cannot do anything unless O’Mara files a motion. An appropriate motion would be to ask her to enter an order declaring the defendant indigent and entitled to the reasonably necessary assistance of investigators and experts at public expense. Such a motion would have to be supported by a detailed financial statement or tax return submitted under oath. Given the substantial sum of money donated to the defendant via the internet (possibly approaching $500,000) that somehow disappeared and the defendant’s “potted plant” behavior at his bail hearing last summer when his wife under oath denied knowing that he had any assets just a few days after she transferred over $100,000 from the internet account into her personal account via his personal account pursuant to his specific instructions, I think Judge Nelson would refuse to accept anything at face value. I think she would insist the prosecution review the documentation or she might appoint a special master to review it, if the defense were to object. I think the defendant and his lawyers could safely assume that any irregularities would result in additional criminal charges.

If Judge Nelson were to deny the motion to declare the defendant indigent, her denial could be challenged on appeal. The issue would be whether she abused her discretion in denying the motion. In turn that would depend on the sufficiency of the documentation supplied by the defense.

To properly preserve this issue for appeal, the defense would have to ask Judge Nelson to reconsider her denial of his motion to appoint an investigator or an expert at every available opportunity. A failure to provide a road map in the trial transcript of requests to reconsider supported by specific reasons why an investigator or expert was reasonably necessary at that particular time might be fatal. For example, the DCA might agree that Judge Nelson abused her discretion by denying the request for indigency, but find that the error was harmless absent sufficient documentation of the harm to the defense caused by the denial.

If Judge Nelson were to grant the motion, O’Mara would have to submit ex parte motions to appoint specifically named individuals to do specific things. She would probably appoint one investigator. The number of experts she would be willing to appoint would depend on the relevance of their area of expertise to the subject matter at issue in the case. The rate of compensation would be at the reduced rate that the court has established for appointed cases.

If the jury were to convict the defendant and O’Mara failed to hire an investigator or an expert to assist in preparing for trial and putting on a defense, his failure to do those things could be raised in a state habeas petition after the appeal is unsuccessful. Habeas petitions are based on evidence that is not in the record and typically are based on defense counsel’s failure to do something that he should have done. The failure asserted in this instance would be the failure to hire an investigator or expert. If that happened due to lack of money and O’Mara did not ask Judge Nelson to find the defendant indigent, the claim would be that he provided ineffective assistance of counsel by failing to make the request.

In order to prevail, habeas counsel would have to convince the court that O’Mara’s conduct was deficient according to prevailing standards of conduct and that, but for the deficiency, the result of the trial probably would have been different.

It takes time to assemble a team of experts and investigators and it takes additional time for them to complete their assignments. O’Mara should have assembled his team before Thanksgiving. The trial is scheduled to begin in less than 60 days and the defense fund is underwater $10,000.

Even if Judge Nelson were to enter orders tomorrow finding the defendant indigent and appointing an investigator and experts, all financial compensation would be limited to services provided in the future.

Given that dire financial situation, plus one unhappy creditor having already sued O’Mara alleging that he has refused to pay $28,000 for services provided, I doubt anyone will invest any time or effort to help O’Mara without a substantial retainer up front.

Such is the nature of the criminal defense business.

Just like his client, he is out of time.

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Is Mark O’Mara Cutting His Losses and Heading for an Exit?

January 31, 2013

Thursday, January 31, 2013

Best wishes to all of you who live in the South and Midwest. A hellish storm peppered with tornadoes, thunderstorms, torrential rain and golf-ball sized hail passed through this large area as a cold front with temperatures below freezing danced with a dense area of warmer air from the gulf. I live in western Kentucky where the temperature now is 32 degrees. Tuesday afternoon and evening the temperature reached 70 degrees. Yesterday featured wild windstorms, rain, flooding and decreasing temperatures. That made for an interesting motorcycle ride to the store late yesterday afternoon. Fortunately, we are OK.

Seventy degree temperatures, large menacing black clouds punctuated with lightning, tornadoes and 40 degree temperature swings do not belong in January.

Or February.

I hope everyone is safe and in good spirits this morning.

Xena gets the credit for inspiring me to write this article about the $40 K that O’Mara spent to upgrade his office.

She said:

” The $40,000 of equipment and office space should be considered an asset to O’Mara’s firm. If I had a lawyer who charged me to expand and equip his office, I would first think that he isn’t prepared to take on my case. Also, if I had a lawyer who thought it was more important to thugify the person I’m charged with murdering rather than ALREADY getting experts lined up in ballistics and forensics, I would think he is not experienced in criminal defense.

IMO, what O’Mara and West are doing is trying to divert the murder 2 case into some other type of case that does not defend GZ at all but rather, makes excuses for him.”

This is my response:

When I worked on the Green River Killer case in Seattle (we had a team of 8 lawyers, 5 investigators, 20 experts and and numerous support staff), we hired a software firm to code over a million pages of discovery stored in an airplane hanger that the prosecution converted into electronic images using scanners. They also imaged over a million exhibits.

An electronic database filled with millions of images is worthless, unless you can search the database and find the information you need. In effect, you need to develop a cover sheet for each document or exhibit in the database and enter information on that cover sheet that tags the document or exhibit with search terms that you will subsequently use to find the cover sheet and its attached document. The process of tagging each document or exhibit is called coding the discovery.

The firm that we retained, hired a team of 36 lawyers who, for one reason or another were not practicing law. Retired, semi-retired and women on maternity leave made up the team. We provided the search terms and they tagged the documents and exhibits. The job took six months to complete.

The firm provided the software program we used to search that immense database. The whole case and the program to search it was stored on a server at their office. We accessed it through a secure internet-tunnel connection. They also provided a secure email program that we used to communicate with each other regarding the case.

My primary responsibilities were DNA and forensics. I also played a major role in developing our coding system.

Although our setup was likely substantially more sophisticated than whatever setup West, O’Mara and their 6 interns are using, I think they are doing something similar to what we did, but on a much smaller scale. The process is expensive, but necessary in big paper-intensive cases.

I question whether all of that high-tech stuff is really necessary in Trayvon’s case, but I understand why they would have decided to modernize the discovery-organization process by converting everything into an electronic searchable database of images. I would too, if I had the money.

O’Mara seems to be wasting an enormous amount of time running his mouth to the media and trying his case in the court of public opinion. He appears to be obsessively preoccupied with a racist right-wing-inspired snipe hunt for evidence of non-existing bad acts committed by Trayvon and his girlfriend, Dee Dee. Seems like almost everyday there is a new nonsensical rumor coming out of tree-house gang that winds him up tight and keeps him going and going like the Eveready Bunny.

I have no doubt that the snipe hunt is a waste of time and energy because the evidence he is searching for exists only in the fevered imaginations of creepy people like the client, the client’s family and their frantic supporters. They seem not to realize that each new phantasmagorical rumor is a distraction rather than an aid. Meanwhile, O’Mara seems oblivious to how stupid he looks when each new rumor fails to pan out.

He has had more than 6 months to find out if Trayvon Martin was an aggressive martial artist who liked to beat the crap out of other people for no apparent reason while uttering outdated ghetto slang from 20-year-old movies.

I keep asking myself when will he finally tire of playing the role of a subservient dog being wagged by its tail?

I am going to repeat something that I said in a comment yesterday:

“I think O’Mara is attempting to cut his losses and get out of this thing gracefully without screaming and running as fast as he can toward the exits with his hair on fire.

At this point, I think it would make more sense to close the account to prevent more people from basically being defrauded by having their money pay for unnecessary security and create fertilizer via the defendant’s alimentary canal instead of paying for needed defense services.

Yes, settle up with AIS, close the account, enter the IFP Order, let O’Mara and West out with an admonishment to run a few laps on the beads and go forth and sin no more, and appoint new counsel at public expense. Then set a new hearing in a week or two for confirmation of new counsel.

If the defendant demands security, send him to jail. He will be safe there. That should stop his complaining.

If he objects to the GPS device on the ground that he cannot afford it, revoke his bond and take him into custody. That should stop his complaining.”


The Defendant Should Claim He is Indigent in the Trayvon Martin Murder Case

January 30, 2013

Wednesday, January 30, 2013

I write today to comment on the defense team’s financial situation in the Trayvon Martin murder case. I wrote about this recently in What Happens if the Defendant Claims Indigence and his Lawyers Ask to Withdraw?

As everyone here knows, internet donors have contributed more than $200,000 to the defendant for his defense costs via Paypal and that money has been deposited into a trust account that is being managed by an independent third-party trustee. I believe approximately $200,000 has been paid for the defendant’s and his wife’s living and security expenses.

The defendant’s two lawyers, Mark O’Mara and Don West, claim they are working pro bono. This means they are not billing for the time they spend working on the case.

This does not mean that they are not billing for their costs, however, which will include money spent for investigation, expert witnesses, court reporters and transcripts of depositions. These costs could exceed $100,000 before this case is done.

Associated Investigative Services (AIS) filed suit in December against Mark O’Mara, the defendant and his wife for breach of contract alleging that they had refused to pay AIS approximately $27,000 for security and investigation services rendered pursuant to a contract negotiated and agreed to by O’Mara on behalf of the defendant. O’Mara filed an answer to the complaint apparently admitting the contract, but claiming that he advised AIS in August that a trustee was managing the account and conserving funds to pay substantial anticipated defense expenses.

The failure to pay AIS necessarily raises concerns regarding the solvency of the defense trust account and the ability of the defense to pay the “substantial anticipated defense expenses” that O’Mara mentioned.

In addition to comments about the significance of the AIS lawsuit, many of you have asked whether the donations to the account are nontaxable gifts or taxable as income to the defendant. I wrote about this back in May or June and said I believed they were nontaxable gifts, but I am not an expert in tax law, so I could be mistaken.

Grey Winter Sky provided this link in a comment this morning to an article in Forbes Magazine last June that reached the same conclusion that I did. Since the decision is up to the IRS, subject to the outcome of any appeals, we could both end up wrong.

Jun quoted Wikipedia to support his conclusion that the donations are taxable income. He said,

“According to wikipedia, Fogenhats’ defense fund does not count as a gift, so he has to pay taxes

“In the United States, the gift tax is governed by Chapter 12, Subtitle B of the Internal Revenue Code. The tax is imposed by section 2501 of the Code.[2] For the purposes of taxable income, courts have defined a “gift” as the proceeds from a “detached and disinterested generosity.”

For the time being, I am going to stick with my initial opinion that the donations are nontaxable to the defendant.

(The donors may have to pay a tax, depending on the amount they donate, but that is a different issue and beyond the scope of this article.)

Regardless whether the defendant has to pay an income tax on the donations, and if he does it would be a substantial amount, I am concerned whether there is enough money in the account to pay “the substantial anticipated defense expenses.”

O’Mara recently estimated the balance in the account had dropped to around $15,000 and there is no way that that amount will cover “the substantial anticipated defense expenses” as well as the continued living and security expenses.

I suspect the civil suit against NBC was filed with the hope that NBC would settle the case quickly and the settlement amount would be added to the trust account to give some breathing room to the defense team. I doubt the case will settle because the claims against NBC and its reporters, even if true, do not establish that they caused any compensable harm to the defendant. He, and not the reporters, called Trayvon Martin a “fucking asshole” and a “fucking coon.” That is what I hear on the NEN recording and I am not alone. Therefore, that lawsuit is going nowhere.

I do not know if the defense continues to receive donations, but if they have slowed to a trickle as I imagine they have, then the defense is going to have to make a very important decision soon.

Hoping that future donations will be sufficient to pay “the substantial anticipated defense expenses” is not a viable and responsible strategy. It’s called gambling.

Sooner or later and preferably sooner rather than later, I believe the defense is going to have to claim indigency and seek an order permitting the defendant to proceed in forma pauperis. If granted, the court would appoint and compensate defense investigators and experts at substantially reduced rates.

No doubt such a move would cause an enormous loss of face for the defense, but that is infinitely more preferable than proceeding to trial without the assistance of defense investigators or experts.

Moreover, a conviction obtained without the assistance of defense investigators and experts might be reversed for ineffective assistance of counsel and that is a result that no one, except a convicted defendant, would desire.


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