Judge Debra Nelson denies defense motion for judgment of acquittal

July 5, 2013

Friday, July 5, 2013

Good evening:

Judge Debra Nelson summarily denied a defense motion for a judgment of acquittal this afternoon after the State rested its case.

The first witness called by the defense was the defendant’s mother, Gladys Zimmerman, who identified him as the person who uttered the terrified death shriek that is audible in the background of a 911 call. However, she admitted on cross examination that she had never heard him scream for help or cry out like that.

Her testimony contrasted sharply with testimony this morning by Sybrina Fulton, Trayvon Martin’s mother, who identified him quietly and sorrowfully without equivocation.

The State rested its case after presenting the testimony of Dr. Bao, the Assistant Medical Examiner who performed the autopsy on Travon Martin. He described the gunshot wound as direct from front to back with the hollow point bullet passing through the front and rear wall of the right the ventricle before coming apart and scattering in different directions finally coming to rest in the pericardial sac.

He testified that Trayvon would have been conscious and in pain from 1 to 10 minutes but unable to move or speak during that time. His testimony contradicts the defendant’s claim that Trayvon sat up and said, “You got it,” or “You got me.”

It also makes it extremely unlikely that he did not know that Trayvon was dead before the police arrived, contradicting his claim on the Sean Hannity Show that he did not know that he’d hit Trayvon when he fired the shot and did not find out he was dead until someone told him at the police station later that evening.

The defendant’s claim on the Sean Hannity Show that he has no regrets, would not do anything differently, and everything happened according to “God’s plan,” is chilling in light of today’s testimony.

Judge Nelson recessed the trial for the weekend until Monday morning at 9 am EDT.

Between now and then, the defendant will have to decide whether to testify or remain silent.

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Many Blessings to Sybrina

June 13, 2013

From LLMPapa

and all of us.


Dispute regarding publication of settlement amount is a tempest in a teapot

April 19, 2013

Friday, April 18, 2013

Good morning.

The dispute regarding whether the settlement amount should be publicized is a tempest in a teapot.

A defendant in a criminal case has the right to cross examine a witness against him regarding any bias or prejudice the witness might have that might influence their testimony in the case.

To facilitate discussion, let us assume that the case settled for $1.75 million.

Mark O’Mara wants to know that amount so that he can argue to the jury that Tracy Martin and Sybrina Fulton were not credible witnesses when they identified Trayvon as the person who uttered the death shriek.

For example, he could argue that they had 1.75 million reasons to lie.

As distasteful as such an argument would be, I believe the defense has a right to make it.

Whether it would make any sense to cross examine them about the settlement and to argue that they lied when they identified Trayvon as the source of the death shriek is another matter.

I do not believe there will be any doubt that Trayvon uttered that shriek because he was unarmed and the shriek abruptly ended as though silenced by the gunshot.

There is no credible argument that the defendant uttered that shriek as he pulled his gun out of the holster, extended his arm, aimed while making certain that he would not shoot his left hand by mistake, and pulled the trigger simultaneously stopping his scream.

To argue to the jury that Trayvon’s parents lied for financial reasons would be to invite scorn, if not hatred, and prejudice the defendant.

Nevertheless, if O’Mara wants to be stupid and venture into an area where no one with an ounce of sense would dare to go, the law erects no barrier and permits him to make a fool out of himself.

I doubt he is that stupid. I suspect he is merely posturing and would not dare go down that road.

Judge Nelson could dispose of this motion by ordering that the amount of the settlement remain confidential for now, subject to reconsideration if Trayvon’s parents testify.

Let him dare to bring it up.

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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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Settlement agreement is dreadful news for George Zimmerman

April 8, 2013

Monday, April 8, 2013

I asked a question yesterday and did not get an answer.

The question was, Did Mark O’Mara advise the HOA to settle the Fulton-Martin lawsuit?

Rene Stutzman at the Orlando Sentinel provided some additional information today.

That secret homeowners association settlement with Trayvon Martin’s family may not remain secret much longer.

Seminole County Clerk of Courts Maryanne Morse has written a letter to Trayvon’s family attorney, Benjamin Crump, telling him that she doesn’t think it meets the standard of a confidential filing so she intends to make it public in 10 days.

Even so, the total dollar figure paid out by the association will likely remain a secret. That’s because Crump edited it out before he put the 12-page document in the court file Thursday.

It’s believed to be more than $1 million.

Stutzman also revealed that Tracy Martin and Sybrina Fulton settled their claim against the HOA without filing a lawsuit. Therefore, the settlement agreement has not been reviewed by a judge.

We know that the Traveler’s Insurance Co., was not a party to the agreement because the HOA did not purchase the insurance until March 30, 2012, a little over a month after the defendant shot and killed Trayvon Martin.

Why did Benjamin Crump file the settlement agreement in the GZ criminal case?

Here’s Stutzman again,

Why Crump had it placed in the file in the first place remains a mystery. He did not return phone calls from the Orlando Sentinel. But his clients, Sybrina Fulton and Tracy Martin, were deposed last month by Zimmerman’s attorneys and were likely asked about the settlement.

In an interview last month, when asked if the settlement was a specific figure between $1 million and $2 million, Crump would not say.

“I have no comment on the subject,” he said. “I know you didn’t get that from me.”

There is an unconfirmed rumor that the New York Times reported in February that Mark O’Mara said Tracy Martin and Sybrina Fulton had rejected a $1 million settlement offer.

Stutzman said today about the settlement amount, “It’s believed to be more than $1 million.”

Sundance Cracker at the treehouse, which is Mark O’Mara’s internet site of choice, reported yesterday that the settlement is closer to $2 million.

Difficult to draw any conclusions without more information, but I sincerely doubt the claim was settled for nuisance value because, given the defendant’s waiver of an immunity hearing and a substantial likelihood that a jury will reject his claim of self-defense, Tracy Martin and Sybrina Fulton would have no incentive to settle the case for peanuts. Better to wait and sue him and the HOA together after he is convicted when, basically, the sky would be the limit.

I figure they were in the driver’s seat and could afford to demand a substantial sum of money to cut HOA loose before trial.

This settlement agreement is dreadful news for the defendant.

BTW, Dee Dee definitely is not the prosecution’s star witness.

The prosecution’s star witness is the defendant and that is why a jury will convict him of murder in the second degree.

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Did Mark O’Mara advise the HOA to settle the Fulton-Martin lawsuit

April 7, 2013

I am hoping to find out today if Mark O’Mara played any role in advising the HOA to settle the wrongful-death lawsuit filed by Tracy Martin and Sybrina Fulton.

Sundance Cracker at The Conservative Treehouse claims that he did. This is the website O’Mara has publicly referenced with approval as a source of ideas.

Since Benjamin Crump represents Tracy Martin and Sybrina Fulton that would certainly qualify him as opposing counsel for purposes of the silly deposition issue.

More importantly, he would have a conflict of interest because he would be in possession of inside information obtained from his client, plus all of the discovery that has not been released to the public, and advising the HOA to settle before the criminal trial.

That’s the equivalent of saying:

GZ’s self-defense claim isn’t going to fly. He’s going to be convicted of murder 2, so you better cut your losses to a minimum by settling now.

If true, that’s a conflict of interest and a major violation of a lawyer’s obligation to maintain client confidentiality.

Imagine how you would feel, if you were George Zimmerman.

O’Mara should be kicked off the case and disbarred, if he did that.

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Trayvon Martin’s parents settle lawsuit against HOA for more than $1 million

April 5, 2013

Friday, April 5, 2013

The Orlando Sentinel is reporting today that Trayvon’s parents, Sybrina Fulton and Tracy Martin, have settled their wrongful death case against the Homeowner’s Association for more than $1 million.

The parties are settling the matter to avoid litigation without admitting responsibility and the terms of the settlement agreement are subject to a non-disclosure agreement.

Trayvon’s parents still intend to sue George Zimmerman separately.

The settlement agreement should not have any effect on the criminal case but it does indicate that the HOA has little confidence in the viability of the GZ’s claim of self-defense.

Of course, we already knew that from our review of the evidence and the defense team’s decision to abandon an immunity hearing.

Congratulations to Sybrina Fulton and Tracy Martin!

This will not bring back Trayvon, but it’s an important achievement and milestone in the long road seeking justice for Trayvon.

H/T to Benjamin Crump: Well done, sir.

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