Court denies Dunn’s request to delay trial in Jordan Davis murder case

January 22, 2014

Wednesday, January 22, 2014

Good morning:

Judge Russell Healey yesterday denied the defense motion to continue the trial date in the Michael Dunn case. The trial will commence on Monday, February 3rd.

Judge Healey next considered the media’s motions to release discovery to the public. By media, I refer to The Florida Times-Union, First Coast News and WJXT TV-4 (AKA: the intervenors). They previously petitioned to intervene on behalf of the public seeking the release of discovery that Judge Healey improperly withheld in violation of the Sunshine Law. They obtained an order from the 1st District Court of Appeal last Friday directing Judge Healey to release the evidence no later than this Friday, unless he determines at an evidentiary hearing to be held held no later than today that some of the withheld discovery, such as names, addresses and telephone numbers of witnesses should be blacked out.

Judge Healey waded into those waters at yesterday’s hearing with both prosecution and defense lamenting the appellate court’s order. Their major complaint was that the release of the discovery this close to trial may prejudice the defense and make it impossible to select a fair and impartial jury.

Of course, if the discovery had been released to the public when it was released to the defense, as required by the Sunshine Law, the late-publication problem would have been avoided.

The primary concern of the prosecution and defense is Dunn’s 740 phone calls from the jail. The Florida Times-Union at Jacksonville.com has the story:

But Corey said the media would still have to pay for the staff time it would take to produce the phone calls. Lawyers for the State Attorney’s Office have said it would take 180 hours of staff time to review the phone calls before they could be released to the public, and the media would have to pay over $6,000 for the staff time it would take to do that.
George Gabel, an attorney representing the Times-Union and First Coast News, said the media shouldn’t have to pay for the calls because the State Attorney’s Office has already reviewed them.

Corey acknowledged that they’d been reviewed, but said her staff had been looking at using them during the criminal trial, and had not reviewed them for release to the public.

Assistant State Attorney Lisa DiFranza said the office would have to review the phone calls again to redact anything that could be seen as a confession on Dunn’s part, and would also have to take any social security numbers or bank numbers that might come up during those calls because public records law prohibit those things from being released to the public.
Prosecutors estimated there were about 740 phone calls made by Dunn since he was in prison. Corey said about 10 of those calls are being looked at by her office to use against Dunn during his criminal trial.

Corey did not volunteer what was said in those phone calls.

Judge Healey said he would issue an order later.

Given the appellate court’s order, I believe Judge Healey has no choice. He has to order the release of the recordings by Friday at the close of business, so Angela Corey better git ‘er done.

I don’t know about you, but I am looking forward to reading transcripts of those calls.


Zimmerman: Judge rules that evidence published by defense last week is not relevant or admissible

May 28, 2013

Tuesday, May 28, 2013

Good afternoon:

Judge Nelson denied the defense motion for a continuance of the trial.

None of the information about Trayvon, which caused the big hullabaloo last week after the defense improperly released it for publication to the Orlando Sentinel, will be admitted into evidence at the trial because all of it is irrelevant and inadmissible.

However, Judge Nelson granted O’Mara’s request for an evidentiary hearing on his motion for sanctions against BDLR for alleged discovery violations pertaining to that information. Unfortunately, she had to continue the hearing to June 6th because O’Mara did not have all of the witnesses he needed to present his case.

I do not believe that he has a legitimate argument, since the evidence is not admissible at trial or exculpatory, and the prosecution disclosed it to the defense in timely fashion back in January. O’Mara claims that the disclosure was not timely because he was provided with raw data that he could not interpret.

However, he specifically asked for raw data, which is a proper request, and he should have retained an expert and/or the software program that is used to interpret it. His failure to do that cannot be blamed on BDLR.

FYI: Defense counsel should routinely ask for raw data, since it is the actual result and less susceptible to misinterpretation. Note that O’Mara waited until after the panel of 500 potential jurors were summoned to jury service. His delay in filing his motion for sanctions suggests that he was more interested in gaining a tactical advantage with that motion than he was in obtaining an interpretation of the raw data.

Judge Nelson granted the defense request for a Frye hearing regarding the admissibility of expert testimony identifying the person who uttered the terrified death shriek. She scheduled the hearing for June 6th and 7th and will permit expert witnesses on both sides to testify by videophone.

The defense still has not endorsed any expert witnesses. Remains to be seen, if any legitimate experts will disagree with the State’s experts and if they have the money to pay an expert. I doubt that they do.

At a press conference after the hearing, Robert Zimmerman, Jr. aggressively promoted the conspiracy theory that I wrote about in my last post.

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Fred


What About that Missing GPS Data?

February 6, 2013

Wednesday, February 6, 2013

Leander said at 9:10 am today:

“Obviously, when Dee Dee made her statement she had heard GZ NEN call. We would have a much better scenario concerning her statements, had SPD done it’s job and interviewed her earlier. On the other hand, they had troubles to get at the phone due to the password. That’s the crux.”

I do not agree.

I do not believe Dee Dee had listened to the NEN call before Ben Crump interviewed her. IIRC, it was not released to the public until much later. The SPD had a lot of investigative work to do interviewing witnesses and processing the crime scene. If they even thought about it, checking the phone log probably would have been a low priority item on the to-do list, until after Ben Crump revealed that Dee Dee had been talking to Trayvon when the defendant stalked and assaulted him.

While it’s theoretically possible that the GPS data for the day of the murder might help the defense, I doubt that it does because we would have seen the defense lawyers congratulating their client and we would have seen him smiling or smirking at the news.

Instead, we saw gloom, doom, resignation, desperation and a visible dislike for the client that is more consistent with bad news for the defense. I cannot imagine that MOM would have failed to mention that the GPS data exculpated the defendant, given his propensity to try the case in the court of public opinion. He would have mentioned it in support of his argument for a continuance, if it existed, instead of waving around an insignificant bar-chart during an extemporaneous and rambling plea for a continuance.

He did not give a coherent answer when she put him on the spot and asked him to provide a specific reason why he needed a continuance. The best he could do was to squeak about not having any experts even though the defense team’s mismanagement of funds is the reason why it has no money to hire experts.

If the GPS data did not exist, or if it were uninterpretable, I think BDLR would have disclosed that in open court to Judge Nelson, defense counsel and the public. He did not do that. Instead, he graciously offered “to connect the dots” for the defense, but they did not rise to the bait.

That tells me the GPS data hurts the defense, badly.

The only reason that I can think of to explain why no one touched this issue and the body language of the defense team, including the lawyers turning their backs on the defendant and leaving him behind sitting forlornly at counsel table as they left the courtroom, is that the evidence devastates his story.

To his credit, I think BDLR resisted the urge to play “Gotcha” and I respect him for that.

He has the trump card. He knows he has it, and the defendant knows it too.

Now, we do too.

The defense team is up the proverbial creek without a paddle, unless the skies suddenly open releasing a downpour of dollars into the defense coffers. I recommend not betting the ranch that will happen.

The defendant is indigent or soon will be. He cannot adequately prepare for trial without an investigator and multiple experts. They do not work for free and he cannot afford them.

Under these circumstances, his lawyers need to file a motion asking Judge Nelson to find him indigent and sign an order allowing him to proceed in forma pauperis.

The sooner the better.

Unless, of course, the defendant pleads guilty.


Why Were Mark O’Mara and Don West Smiling?

February 5, 2013

Tuesday, February 5, 2013

Happy Birthday Trayvon!

As I predicted, Judge Nelson denied the defense motion to continue the trial date. You might think MOM and Don West would be angry and depressed but they were smiling and laughing. If you tuned in right after the hearing ended, you would have thought they won. I explain below why I believe they are delighted with the outcome.

I do not deserve any credit for accurately predicting her decision because the outcome was obvious.

The motion was a smoke-and-mirrors effort to provide cover for the real reasons for the continuance. The real reasons were MOM wanted more time to troll for dollars on the internet and to continue trying his case in the court of public opinion.

Judge Nelson cut him off in mid argument and asked him to give a specific reason why he needed the continuance. He could not do it because Judge Nelson knows bullshit when she hears it.

She read him her order setting the trial date and reminded him that he had agreed to the June date. Then she denied his motion.

Her order likely is not appealable because it would be an interlocutory appeal, which is prohibited subject to a few specific exceptions that do not apply.

Interlocutory appeals, BTW, are mid-stream appeals. That is, appeals filed before the trial court enters a final order disposing of the case after sentencing. Appellate courts do not want to deal with piecemeal appeals taken from orders that do not dispose of a case.

However, even if the Court of Appeals agreed to consider an interlocutory appeal from Judge Nelson’s denial of the motion to continue the trial date, it would have to affirm her order because MOM did not provide a specific reason why the continuance was necessary.

MOM got frustrated with her and blurted out that the defense does not have any experts, but that is not a basis to continue the trial date because there are still four months to go before trial and the defense has had almost a year to get some experts on board, but failed to do so despite having well over $300,000 in internet contributions.

That they might have spent their money unwisely is not the court’s problem.

What happens now?

Unless a billionaire or two provide adequate seed money, and why would they with this hopeless mess, MOM is going to have to file a motion seeking an order that would declare the defendant indigent and allow him to proceed in forma pauperis (i.e., as a pauper).

Under the circumstances with the defense nearly out of money and probably on the hook for the $27,000 owed to AIS, I think Judge Nelson would grant the order. If so, the Court would appoint and pay for an attorney and reasonably necessary costs for investigation and expert witnesses.

Here is where the situation gets a little less predictable. Whom will Judge Nelson appoint to represent the defendant. He gets no say in the matter, BTW.

But for Florida having recently passed a law prohibiting private counsel from being appointed to represent an indigent defendant who ran out of money after retaining them, I would expect Judge Nelson would have been inclined to appoint MOM or West because appointing new counsel will almost certainly require continuing the trial date.

Although both lawyers have claimed that they have not taken a cent for the time they spent working the case, and that might arguably mean that the statute does not apply to them, they have spent money to acquire new office equipment. For example, MOM has spent $40,000. That probably disqualifies them from being appointed.

I think there is a much more persuasive reason why Judge Nelson will not appoint them. They do not want to be appointed.

If you have not done so, watch the hearing with the sound off and study their body language. If you do not want to watch the whole thing, fast forward through it and watch what happens after Judge Nelson declares the Court is in recess.

MOM and West are all smiles and acting like they won the hearing. They stand with their backs to the seated glum defendant, ignoring him. BDLR’s second chair comes over and briefly tugs on MOM’s sleeve to get his attention and they share a little joke and laugh. Then MOM and West pack-up their stuff and leave without apparently saying anything to the defendant who continues to stare glumly at the table.

He remains there silent, still and alone, except for MOM’s assistant, the blonde lawyer from his office whose role appears to be to babysit him. She hovers nearby until the bailiff approaches him and tells him to leave. They leave together, but her body language suggests she cannot abide him. No surprise there.

I think the real winners today may have been MOM and West who now appear to have a face-saving ticket out of the case.

Given their indescribably toxic and unpleasant client, I think this might be the best news they’ve had since they got involved in this nightmare case.

Could even be the best news they have ever heard.


Lawyer Games and Trayvon Martin’s “Missing” GPS Data for February 26, 2012

February 1, 2013

Friday, February 1, 2013

Good afternoon to all of you.

The topic today: Lawyer Games and Trayvon Martin’s “Missing” GPS Data for February 26, 2012.

I have played my fair share of lawyer games over the years and I must admit that the adrenaline rush from winning a round of Gotcha! can become quite intoxicating and addictive. We have what appears to be a splendid game afoot between Mark O’Mara and Bernie de la Rionda.

Allow me to briefly set the stage.

MOM kicked off to BDLR with a Motion to Continue (the trial date). He wrings his hands and whines incessantly for fifteen pages about how the prosecution has so inconvenienced the defense that it cannot possibly be ready to try this case on the scheduled trial date of June 10, 2013.

BDLR’s response paints a very different picture of the prosecution cooperating with the defense by waiving the subpoena requirement and producing its witnesses for deposition only to have MOM cancel entire days of scheduled depositions at the last minute.

Then he kicks him where the Sun don’t shine by asking rhetorically if the real reason MOM filed the defense motion was to get more time to replenish the internet fund.

I urge all of you to read MOM’s motion and BDLR’s response because they are instructive and entertaining.

I am going to focus on one small part of the motion. On page 8, MOM asserts that on January 8th, he was provided with “an enormous amount of additional information” obtained from Trayvon Martin’s cell phone by CelleBrite, a company in New Jersey that claims to be able to obtain logical and physical information from cell phones. The information Cellebrite obtained was in addition to information obtained by the FDLE and a California law enforcement agency.

So far so good. However, there may be a catch. MOM complains that, although he has been provided with GPS data for the month of February 2012, he was not provided with any GPS data for the date of February 26th, the date of the murder. Apparently, the GPS data that has been provided is more accurate than we knew.

Damn! What a teaser. Don’t you hate it when that happens?

If I were O’Mara, I would proceed very cautiously because it looks and feels like gossamer-thin ice, a trap set for the unwary in the Gotcha! game.

I noticed that BDLR did not respond to MOM’s claim that the GPS data for the only date that matters in this case is missing.

I commented earlier:

“We have no choice except to wait until the Tuesday court hearing, because neither BDLR nor the FDLE have responded in writing regarding O’Mara’s claim about the “missing” GPS phone data for 2/26.

My best guess now, given MOM’s characterization of the data that was retrieved by CelleBrite, the New Jersey company that specializes in retrieving information from cell phones, as “an enormous amount of additional information” (i.e., additional to the information obtained by FDLE and a California LE agency), is that that information annihilates the defendant’s narrative of what happened.

In other words, Game, Set, Match!

Assuming I am right, that would be a rather brilliant strategic move by BDLR to put MOM in a position where he publicly demands to know something that BDLR will now reveal in open court on Tuesday, thoroughly demolishing the defense.

The defense may need to have an ambulance standing by at the ready.”

It’s not as if the defense has not asked for such rude treatment. MOM’s behavior must be especially galling to BDLR, who is limited to responding in court to issues properly before the court. MOM’s incessant whining, added to his blatantly dishonest effort to try the case in the court of public opinion would try Job’s patience, and I do not get the feeling that BDLR is a patient man.

Wise man say:

If you keep drawing a target on your chin while daring your enemy to hit you, sooner or later he will break your jaw and put you in the hospital.

This thinly disguised effort to get more time to replenish the defense coffers by falsely blaming the prosecution for the need to continue the trial date may have been the last straw.

After all, as with all of his miseries, the defendant has only himself to blame.

Any complaint about lack of money should draw a comment about the $100 grand that went to a bail bondsman because the defendant and his wife lied to the Court about their funds.

Any complaint about being pressed for time and needing a continuance should draw a comment that the multiple month delay last summer was caused by the defendant and his wife lying to the Court about their funds.

Back in December we saw BDLR fire a couple of shots across the defense bow with his reference to two identifiable voices in the background of a 911 call and his reference to Chris Serino’s multiple capias drafts recommending that the defendant be charged with murder 2 and eventually manslaughter. That silenced MOM until last week when he moved for the continuance.

Whether or not this is a Gotcha! game, the prosecution has to turn over all exculpatory information that it has as well as all information obtained from the phone that it intends to introduce at trial. I seriously doubt that any information obtained from that phone is exculpatory. I believe the information from 2/26, assuming that it has been retrieved from the phone, will be introduced at trial. Therefore, the prosecution must provide it.

If they were unable to retrieve it, they are going to have to explain why.

I do know this: If the defendant had not squandered so much money and defense counsel had used it for its proper purpose and retained a phone technology expert, we might not be having this conversation.

Assuming I have called this one right, BDLR will have delivered a mighty fine birthday present to Trayvon and his family on his 18th birthday.


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