Cheney Mason Jars the Truth, By George!

It’s hard to believe that Casey Anthony was found not guilty of first-degree murder three years ago, but she was. My coverage of the case began in November of 2008 and continued in earnest until the verdict. That’s when it ended. Many people wanted me to resume writing about her — the lawsuits and bankruptcy — but my job was finished. Those news stories were of little relevancy to me, so I never wrote about her again. Until now. Something (or someone) has piqued my interest. Most assuredly, it must be of major importance to stir me from my restful, peaceful, crime-free, post-Zimmerman Rip Van Winklish sleep, right? Yes, and it’s Cheney Mason. Just as the Casey Anthony saga began with a flurry of horrible lies, the nest of iniquity continues.

Certainly, I have reasons to seek vengeance on those who took down the presiding judge at my expense, but I’m not a begrudging type, and the years have softened my stance to some extent. Jose Baez apologized years ago. It was nothing personal against me, he said, but he didn’t feel Casey could get a fair trial, especially in light of the check fraud pleas. That’s a different story and I understand more about the incident after years of study and reflection; however, I firmly believe the idea was the brainchild of a vindictive Cheney Mason. Mason had it in for Judge Stan Strickland and you are just going to have to trust me on it with no further explanation at this time. Asking the judge to recuse himself from this case is not the reason why I decided to pick up my pen. It’s to set the record straight over what I consider to be a persistent and perpetuating lie perpetrated by Mason — that poor, little Casey is innocent of any and all wrongdoing, and that the media and prosecution are guilty of everything. 

In his book, Presumed Guilty | Casey Anthony: The Inside Story, Baez wrote:

Casey and I had discussed her sexual abuse, and I felt it was only a matter of time before she would tell me the truth about what happened to Caylee.

This was immediately followed by:

The day I had a major breakthrough with Casey came in the early months of 2009 […]

He continues to explain what Casey told him about the drowning and her father’s involvement:

“Don’t worry. I won’t tell anyone. I’m taking care of it. Don’t say a word of this to anyone, especially your mother,” and he walked away.

Believe what you want. My point is that for over two years, until the onset of the trial in downtown Orlando, her defense team maintained an oblivious facade about the cause of Caylee’s death, and the public and many facets of the media were eschewing whatever Baez, et al, spit out. If she was so innocent, why not come forward much sooner than the trial? To be Nancy Grace-like, it would have been a BOMBSHELL and it would have sent the prosecution reeling into a downward, spiraling tizzy… momentarily, at least, until it had a chance to regroup. Instead, the young woman sat in jail from October 14, 2008 to July 17, 2011.

(I think it’s important to remind you, before I go on, that Baez was not death penalty qualified, so Mason was hired, pro-bono, in March of 2010, a year before Casey opened her mouth about the death of her daughter, as cited above. Mason had collaborated with Baez prior to officially joining the defense, too, so he was aware of his new client’s alibi and the accusation of sexual abuse. Unfortunately for George Anthony, he was going to be the defense scapegoat and he didn’t have a clue. If I was a minor target, George was huge.)

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Presently, I know precisely what Mason is spewing. It’s called marketing propaganda and he’s doing it to promote his new book, Justice in America: How the Media and Prosecutors Stack the Deck Against the Accused due out soon. I think it’s important and fair to first note that Mason does come with credentials. He’s a highly regarded veteran of criminal defense trials, as CNN’s Jean Casarez just pointed out in her interview with him, What life is like for Casey Anthony, updated July 4:

A former president of the Florida Association of Criminal Lawyers, Mason, who just that year had been selected by Florida Monthly magazine as one of Florida’s top lawyers, was disgusted with the local media coverage about the relatively inexperienced Baez.

That’s great. What a hero. Definitely, Baez was treated with contempt by the public and press, but it came with the territory of representing the most reviled woman in America and Baez knew that. What he needed was help forming a strong and capable defense, not a pompous ass press secretary/superhero. For now, though, let’s continue with the version Casarez wrote and elicited from Mason:

Shortly before jury selection was to begin, Mason got word that Anthony’s handwritten letters describing sexual abuse at the hands of her father were going to be made public under Florida’s open records law.

He believed it was only right that Anthony’s parents, George and Cindy, were warned. He called them to his office late on a Friday afternoon.

“We had them one at a time come into my personal office and made the announcement: ‘Monday’s going to be a bad day for you George. I felt man to man I would tell you in advance.”“

Mason said George Anthony’s reaction was “basically none.” “He looked at me … I turned sideways a little bit, he clapped his hands down on his thighs — let out a big sigh but didn’t say anything,” Mason said.

“He never admitted doing anything,” Mason said. “All we had were the letters and (separately) the statements Casey had made to the psychiatrist.”

According to Mason, he then called Cindy in to inform her.

Next it was Cindy Anthony’s turn. “We called Mom in, Cindy, and told her and she immediately welled up with emotion, cried, was very upset,” Mason said.

This is not what I recall from my experience with the case. Please note that Mason said George and Cindy Anthony went to his personal office after he got word, yet in his book, Baez wrote something contrary to Mason’s revelation.

Two psychiatrists evaluated Casey for the defense, Drs. Jeffrey Danziger and William Weitz. Danziger was initially appointed by the court in 2008 following her arrest. For the defense, he met with her four times in November and December of 2010. Weitz conducted two interviews in February and March of 2011. According to Baez:

After the prosecution took the depositions of the two psychiatrists, both sides agreed they should be sealed because they contained medical information as it related to Casey’s mental health, and there were issues of sexual abuse by George and Lee, which was protected under state law. Perry immediately sealed them, saying that he wanted to review them before deciding whether they should remain sealed.

Baez continued:

A couple of days later, Cindy called me to say she and George had an appointment the next day at the state attorney general’s office to discuss the depositions of the shrinks.

I lost it. I smelled the skullduggery of Ashton and immediately contacted Perry, telling him that the state was planning to meet with the Anthonys to discuss the information that he had sealed. 

Perry had a clear response: “Sealed means sealed.” Despite this clear message from the judge, the prosecution went ahead and had its meeting anyway. That was the arrogance of Ashton, whose attitude was, “I can do anything I want because I can get away with it.”

And get away with it he did.

In fact, according to Baez, the prosecution didn’t show the Anthonys the depositions, it showed them the notes they took during the depositions:

[…] The benefit to the prosecution by making sure the Anthonys found out what was in the shrinks’ depositions, of course, was that when the Anthonys found out that Casey was revealing George’s sexual abuse, they would turn on Casey, no longer support her, and became [sic] state-friendly witnesses.

I thought Cheney was going to have a heart attack. […]

This is proof that Mason did not individually call George and Cindy into his office to “warn” them. Instead, Baez warned Mason about what the Anthonys learned from prosecutors. But wait! There’s more…

Before Presumed Guilty was released, then assistant state attorney Jeff Ashton published his book, Imperfect Justice | Prosecuting Casey Anthony. He had something to say about this matter, too, and it offers a third view, far removed from Cheney Mason’s.  Beginning on page 215:

Even though the witnesses had been withdrawn [Danziger and Weitz], Linda [Drane Burdick], Frank [George] and I wondered how much of this George and Cindy knew. Just because the defense had dropped the witnesses didn’t mean they were abandoning the argument completely. There was still a chance that George could be dragged into this.

One evening around the time that all this was happening, Mark Lippman, the attorney who by then was representing George and Cindy, filed a strange press release. It said something to the effect that George Anthony had nothing to do with the disappearance of Caylee.

Ashton contacted Lippman, assuming that Baez had spilled the beans:

Mark told me that a few days earlier, Baez had asked for a meeting with just Cindy. When she arrived at his office, Baez, Dorothy Sims, and Ann Finnell via the phone were waiting for her with important news. Baez proceeded to tell Cindy that Casey had authorized him to say that Caylee had died at the house and that her death had been an accident. Baez also told Cindy that the state was investigating George’s involvement with Caylee’s death. Baez claimed that the authorities had information from a witness who said that George’s phone records held valuable clues.

I was speechless. Poor Mark only knew the tip of the iceberg. It was the cruelest thing I have ever seen an attorney do. […] To tell this grieving woman…

To say that Ashton was outraged would be an understatement. This is what pushed him to tell the Anthonys the whole story — to warn them.

I told Mark we weren’t investigating George, although sadly, there was more bad news. But I had to get back to him about it. Linda and I discussed the best way to handle the therapists’ reports and we decided to invite Mark, Cindy, and George to our office. I gave Mark a call.

“Are they saying that George disposed of the body?” He responded by telling Lippman it was worse than that. 

When Baez found out that Cindy was coming to our office to see what the doctors had said, he immediately shot off an e-mail to Judge Perry, essentially accusing us of violating Perry’s order.

Linda said that Judge Perry’s order indicated only that the transcripts would not be made public documents; it never restricted our ability to investigate the story, and there was no way we were going to let Jose’s lies go unchallenged. Baez would later attack us on this point, but the judge agreed with us.

The prosecutors decided to discuss their notes and recollections with the Anthonys since the depositions were, in fact, sealed. Caylee’s grandparents needed to know the truth about what was actually going on, despite the inherent risk of possible witness tampering accusations.

George and Cindy were visibly upset when they arrived at the state attorneys office, Ashton pointed out.

Before the meeting, we’d told Mark that we would speak to him privately and share what we knew with him. Then it would be up to him to decide what to tell the Anthonys. We put George and Cindy in the conference room and took Mark into the office with us.

Lippman heard the entire story…

Mark left and went to the conference room to talk to the Anthonys for what seemed like twenty to thirty minutes. Linda and I were in a nearby conference room when Mark came to find us. Cindy and George had questions, and we accompanied him back to the conference room. Cindy was sitting at the table just looking down. George was next to her, his face bright red. Cindy looked angry. George looked like he had been crying, like someone had just killed Caylee all over again. He was just devastated.

“I just want you to know that none of this is true,” George said to us.

Cindy patted him on the hand and said, “It’s okay, George. Nobody believes this.”

His words would catch in his throat as he assured us one more time, “I just want you to know that everything I told you is the truth and I am not changing any of it.”

I remember Cindy saying something like, “I don’t know what’s wrong with her,” referring to Casey. At least she was finally willing to admit that there was something not right about Casey. How it would affect her testimony at trial, though, was anyone’s guess.

There you have it. The rest is history. But is Cheney Mason rewriting the history books to glorify himself? To give himself most of the credit for saving poor, innocent, child-like Casey? Sometimes, certainly in this case, when someone keeps telling himself the same thing over and over and over again, he begins to believe it. Mason is, after all, one of Florida’s BEST attorneys, as I’m sure he would quickly remind us and his mirror. And if Washington chopped down the cherry tree, he chopped down the giant Ashton tree. And didn’t tell a lie. Yes, man-to-man, he gently pulled George into his office to softly break the news. What a kind and compassionate father figure. Only, I wouldn’t buy a used lemon from the man.

The amazon.com Website promo intro of Mason’s book says, “He shares never before revealed media bias, and enough case secrets to make readers re-examine their conscience and the quick path to judgment and personal conviction of Anthony.”

I am deeply concerned about the honesty of those “case secrets,” especially coming from a man with so much documented bias against the media. Until he needs to use us.

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I think it’s important to mention something more enlightening about the defense psychiatrists, Drs. Danziger and Weitz. They were most likely removed as witnesses out of fear that the judge would have granted the state their own psychiatrist, who would have interviewed their client. That would have been problematic for Casey and the entire defense. It’s also necessary to say that Danziger was highly uncomfortable with being a mouthpiece for these “very, very serious allegations against someone in a situation where there is no other evidence he actually did anything.” (Imperfect Justice, Page 210.)

Once Upon A Time...

Once upon a time, Pudgie the Bear was skipping through the woods when Trigga the Tree Troll stopped him.

“Why are you running in my forest?” Trigga demanded, as one of his giant tree limbs stopped Pudgie dead in his tracks.

“I… I… I have every right to be here,” Pudgie quickly responded. “Why did you stop me?”

“Because these are my trees. You are robbing my forest of flowers, leaves, grass, mushrooms, berries, roots and nuts!”

“No. Not me!!! I like honey!” Pudgie cried, but Trigga wouldn’t relent. The young bear tried to fight his way out, knocking chips of bark all over the place. “I’m going to make compost out of you!”

“No you won’t,” Trigga replied, and just like that, his powerful limb lifted up and came smashing down; knocking the stuffing out of poor Pudgie’s body, sending it flying all over the place. 

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Attorneys Natalie Jackson, center, Benjamin Crump, center right, and Daryl Parks, far right, representing the family of Trayvon Martin sit stoically as George Zimmerman’s not guilty verdict is read in Seminole circuit court in Sanford, Fla. Saturday, July 13, 2013. Zimmerman was found not guilty in second-degree murder for the 2012 shooting death of Trayvon Martin. (Gary W. Green/Orlando Sentinel/Pool)

After the verdict came last Saturday night and my journey was over, I was tired. From the very first article I wrote; from the very first hearing I attended to the very end, I put in a lot of hours. One of my friends asked me if I would be alright. How would I handle it now that it’s over? Would I be depressed? No, I answered. This is the life of a writer of true crime and courtroom drama. A climbing crescendo, long and winding, coming to a tumultuous climax and compelling completion is what it’s all about. Cut to the end. If we can’t deal with it, we’re in the wrong business. That’s just the way it is. Death becomes a way of life.

By Sunday morning, most of the civilized world that paid attention to the Trayvon Martin/George Zimmerman trial knew the outcome. All that was left to do was to discuss it, but not me. I needed a break. Throughout, there were multitudes of directions each and every one of us had taken — like a hundred road intersection — converging into a massive mess of a traffic jam. Which one of us had the right of way? I don’t know. I still don’t, although a jury of six women decided for us. Yield! Move on or get run over! I suppose I could write a lot about the verdict, but what’s done is done. To perpetuate the story is, to me, unbearable. I won’t let it dog me. 

The Pavlov’s Dog Affect

From the beginning of the trial — jury selection or voir dire — we were warned by the Court and deputies to turn off all cell phones or set them to vibrate. This included iPads and other tablets and devices. No noises would be tolerated in courtroom 5D. Even Siri became a serious problem. Initially, we were given two strikes — a warning, then an ejection. That changed after the second or third day when (then) Chief Judge Alan A. Dickey changed the rule. It was one of his final orders before leaving his position, which was part of routine circuit rotation. Judge Nelson wanted it to remain two strikes but, instead, it became one, you’re out, although someone in your news organization could replace you; however, if your replacement made a noise, it would be strike two and your outfit would be banished for good — to the media overflow room you go. 

Unfortunately, I heard dings, dongs, boing after beep and ring after cell phone song from the gallery. Out went a few journalists and members of the public, until the rest of us were conditioned to be scared to death. That’s a fact. For the remainder of the trial and days beyond, whenever I heard a digital noise of any kind, no matter where I was, I cringed. If I happened to be in the produce section picking out peppers when a cell phone pinged, I panicked. It was either mine or someone else’s and it meant immediate ejection from the courtroom. I called it PDSD — Post Dramatic Stress Disorder. It took some time, but I finally broke free and now feel safe when my phone barks.

Dog Eat Dog

This wasn’t my first go ‘round in criminal court. I was credentialed during the Casey Anthony trial. When journalists from all over the country and elsewhere began to come together at the courthouse for the Zimmerman trial, it was nice to see familiar faces again. We couldn’t believe it had been two years, but it was. After friendly hellos, hugs and handshakes, it was all business. Of course, there were plenty of new faces, too, from local news stations and major networks, including cable. 

It’s the nature of the business to out-scoop each other, so there’s always a competitive edge. There’s eavesdropping and lots of interruptions while talking to someone involved with the trial, as if their questions for Ben Crump seem more important than the rest. Generally, they’re not, but that’s the way it goes. Don’t get me wrong, most of the media reps are very nice, but there are a few egos that get in the way; more so from producers than from on-air personalities. Like what I discovered during the Anthony case, the more famous the personality, the nicer they seemed, and the more intrigued they were with local news people.

There was an emotional tie inside the courthouse and, most certainly, inside the courtroom. Aside from the actual trial, I mean between journalists. I could clearly sense that, after the strike rule went into effect, plenty of those people sitting on the media side would almost kill to get one more of their own in that opened up seat. They hoped and hoped a cell phone would accidentally go off, although everyone cringed when it did. We all knew it was to be expected. It’s the nature of the beast. Goody! Goody! The problem with me was that there were no replacements. I was the only blogger inside that room with credentials. Some may have resented that fact, but most didn’t. When I was asked who I was with, I proudly said, “Me!” I represented no one but myself.

Throughout jury selection and the trial, that’s the way it was. When the State rested, everyone’s attitude changed. Gone were the vibes that begged for someone’s phone to go off. There was almost a camaraderie among us. The end was near and we all sensed it. Once again, in a matter of days, we would be going our separate ways. Surely, Mark O’Mara and his defense team wouldn’t take long and we knew that, too. How did we know? Because most of us realized the State did not put on a good case. It was a letdown. Is that all there was? They sure didn’t prove anything beyond a reasonable doubt. Therefore, the defense wouldn’t need to put on much of a show. Besides, they had cross-examined the State witnesses very effectively.

With the last few days of trial at hand, what we had waited for and built up to was going to come down. A verdict was nigh and it would be over. Time to say good bye to those who cared enough. Some just packed up and left. They knew we would meet again at the next big one. Surely, there’s always a Jodi Arias out there to cover.

On the final day, last Saturday, I could feel the electricity in the entire courthouse. The building was supercharged. I asked Rene Stutzman, who covered most of the case for the Orlando Sentinel, if she could feel it, too. “Yes,” she responded. “Absolutely.”

I spoke to one of the administrators on a floor not associated with the trial in any way. She also acknowledged that her coworkers felt it, too. It really cut into their levels of concentration. Of course, some of that could have been attributed to protesters, but they didn’t come until the final three days and, even then, it wasn’t that many. No, this was a powerful trial; one that touched the entire area surrounding the courthouse.

As a final aside, I must say that Judge Nelson was one tough judge. No, I’m not going to humor your thoughts on bias, one way or the other. This has nothing to do with that. Comparing her to Judge Belvin Perry, Jr., Perry was a pussycat. He gave us an hour-and-a-half for lunch each day and there were lots of restaurants in downtown Orlando to choose from. Plenty of time to eat, in other words. Nelson, on the other hand, gave the jury an hour each day and if there happened to be any unfinished court business after they were excused, it cut into our lunch time. That meant less than an hour, generally, with NO restaurants nearby. Well, WaWa. Despite it being cold in the courtroom, I couldn’t bring perishables, so I brought MorningStar Grillers Prime or Chipotle Black Bean veggie burgers on a toasted English muffin. No butter. Plain. I heated them in the lunchroom microwave, where I ate almost every day with a handful of other journalists. Sometimes, we’d talk shop as I nibbled on fresh tomatoes and assorted fruit. Today, there are no more daily events to discuss among my peers, but I am sticking with the diet. Plus salad. Those veggie burgers grew on me, especially the Grillers Prime.

And in the end…

After nearly five years of writing about local murders, I hope nothing else like the last two cases comes along again. In the Zimmerman trial, one must understand the residents of Seminole County in order to grasp the verdict. It is a predominantly conservative Republican county made up of a mostly Caucasian population. Gun rights is an important issue. It is not a racist area, although it used to be many, many years ago, but never as much as the surrounding counties. Ultimately, the jury based its decision on the law and how it’s written; not so much on the absolute innocence of Zimmerman, as if he did nothing wrong. In the eyes of the law, Casey Anthony did not murder her daughter, did she? Or was it, more or less, because the prosecution did not prove its case?  

In the Zimmerman/Martin confrontation, it was the ambiguity of the final moments that cemented the verdict. All you need to do is to look at something else in order to figure it out. Take a DUI (DWI) traffic stop, for instance. If you refuse all tests — field sobriety and breathalyzer — and keep your mouth shut in the back seat of the patrol car, there’s hardly any evidence against you other than the arresting officer’s word. The less evidence a prosecutor has, the less chance of a conviction. That’s what happened here. There just wasn’t enough evidence. Without it, the jury could not convict George Zimmerman — not as presented by Bernie de la Rionda and his team. There wasn’t even enough for a manslaughter conviction, was there?

On the night of February 26, 2012, something horrible took place. Was it poor judgement or bad timing, perhaps? Was it both? Had Martin arrived at the Retreat at Twin Lakes only five minutes earlier, Zimmerman would have gone on to Target. Had Zimmerman only left the Retreat five minutes earlier, Martin would have walked safely home to watch the NBA All-Star Game. Who started it and who ended it can and will be argued about for years to come. I formed my own opinion, but I choose to move on now. A verdict has been rendered. Let the rest of the media hound on it. They get richer and richer off the story and I never made a dime. In the end, trust me, Trayvon Martin did not die for naught.

As for me, what does my future hold? I may re-stuff Pudgie the Bear and write fiction. Yup, you know… Once upon a time, we had characters like the Lone Ranger. In those days, good guys always wore white and bad guys never got away.

George Zimmerman is congratulated by his defense team after being found not guilty, on the 25th day of Zimmerman’s trial at the Seminole County Criminal Justice Center, in Sanford, Fla., Saturday, July 13, 2013. (Joe Burbank/Orlando Sentinel/POOL)

Cross-posted on the DAILY KOS

The Court of July

The Gregorian Calendar has been the most widely accepted date-keeping standard since 1582. It means that, in most parts of the globe, July 4 is just another day of the year. In the United States; however, it’s not. It’s our birthday and we love to celebrate. Yankee Doodle. Feather in the hat. Macaroni salad. It’s a time for festivities of all kinds, including some of the most impressive fireworks displays the world has ever seen. We call it Independence Day because it’s the date signed on one of our nation’s most cherished symbols of liberty, the Declaration of Independence from the British Empire in 1776. This is a holiday to eat apple pie. It’s also a great day to munch on a hot dog while taking in an American staple — a good, old fashioned baseball game. How much more patriotic can we get than that… baseball, hot dogs and apple pie? Well, we can celebrate the US Constitution and our system of justice. That’s a good part of what it’s all about. Many of us saw it in action during the Jodi Arias trial and, before that, Casey Anthony. Now, there’s George Zimmerman. Charged in the February 26, 2012 shooting death of 17-year-old Trayvon Martin, his second-degree murder trial began began June 24.

Speaking of baseball and Casey, and I’m not referring to the 1888 Ernest Thayer poem, Casey at the Bat, July 5, 2011, was the day Ms. Anthony received her declaration of independence from the justice system. Not guilty. While most Americans have been able to enjoy an extended four-day weekend this year, death took no holiday in Seminole County on July 5. Court was in session. Ironically, two years later to the date of her verdict, the State of Florida rested its case against Mr. Zimmerman. While some might call this the 7th inning stretch, although the defense did put two people on the stand, Zimmerman’s mother and maternal uncle, I do not. Sadly, I have heard lots of people in the courthouse and elsewhere refer to trials almost like sporting events. Who won this day and that day. Points made in the courtroom are points on a scoreboard. Most certainly, any time a matter of life and death is brought into an equation, it’s not a game. Young Martin is dead. He will never play another game of baseball. Zimmerman might not, either. Nelson’s courtroom is not a stadium and she is not an umpire calling balls and strikes. We are not eating Cracker Jacks in the gallery. Did I say Cracker?

What we have is the Constitution in action. The right to a fair trial. Part of our Declaration of Independence guarantees that we are all equal.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

There is no doubt that the United States is still a land of golden opportunity. Everyone has a chance to follow the path to success. We see it in action every day, but in some situations, it’s not really equal; not that it has to be, because we do not live under any kind of Utopian rule. We do not live “where nothing in society will belong to anyone, either as a personal possession or as capital goods, except the things for which the person has immediate use, for either his needs, his pleasures, or his daily work.”

That statement is attributed to French thinker and novelist, Étienne-Gabriel Morelly. Where am I going here? Proof positive of the American system at work. Look at Jose Baez, speaking of the Casey Anthony case. He walked into a gold mine. What was he before she came along? An ambulance chaser? A DUI lawyer? While I am making no accusations against his background, Casey got his name from two women sitting in a holding cell at the Orange County Jail. The rest, they say, is history. Mark O’Mara, on the other hand, worked very hard throughout his career as an attorney to get to this point. He earned it through many long and arduous hours. Granted, Mark NeJame referred Zimmerman to him after turning him down, but he wouldn’t have done so had he given a thought that O’Mara’s solid credentials were less than stellar. While some of you may wonder why I bring this up at all, let me remind you that you can read about daily trial events in the newspaper. You can see and hear all about it online, on radio and on television. What I am is a pundit; a purveyor of private opinion made public. It’s my own brand of commentary, and here some of it goes…

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A very powerful conservative blog, strongly favoring Zimmerman, splintered over O’Mara. Some believed his intention, all along, was to sabotage his client. Well, look at him now. He has done a splendid job dissecting many State witnesses, neutralizing some while turning others into Defense allies. This is the “mark” of a great attorney in the making, although I knew all along it was in him. He’s a great orator and thinks fast on his feet. There aren’t too many in the field of law that can pat you on the back while stabbing you in the gut — and — at the same time, keep you smiling. That’s O’Mara. That’s class, no matter what his courtroom adversaries and the public may think. His partner, Don West, on the other hand, is blunt and direct; straightforward to a fault. He is quite effective, too. In my opinion, they complement each other. West goes in for the kill and O’Mara soothes the pain. Or is it the other way around? O’Mara numbs you first. Either way, it’s a talented team.

But has it always been effective? No, it hasn’t. Take the case of Ms. Rachel Jeantel, the State’s reluctant key witness. She was the last person who spoke to Martin before his death, other than Zimmerman. That is a matter of fact that cannot be disputed. The problem lies with her testimony, and what is left in its wake is quite complex. It falls into two vastly different camps; the thems that believe her and the thems that don’t. Granted, she lied under oath on more than one occasion, so why should anyone choose to believe her now?

Witness Rachel Jeantel gives her testimony to the prosecution during George Zimmerman’s trial in Seminole circuit court in Sanford, Fla. Wednesday, June 26, 2013. (Jacob Langston/Orlando Sentinel)

In order to understand Ms. Jeantel, one must consider her style in the courtroom, not just her substance. Let’s say she will never be a diplomat. Nor will she ever be a United Nations interpreter, although she is multilingual. English is just one language and it’s not her first, obviously. De la Rionda established that she grew up in a Haitian family speaking Creole. From what I’ve learned, she lives in a ghetto section of Miami. She and her friends understand urban-speak. She knows hip hop. She comes from a different world of imperfect grammar and Ebonics, living in a different generation; under separate rules of engagement. Ghetto people of all generations have no respect for the police. If you must ask why they disrespect law enforcement, then you know nothing about inner-city culture. Why then, would anyone, in all seriousness, ask her why she didn’t call 911 after Martin’s phone disconnected? So the police would come banging at her door to interrogate her? We’re not talking about someone with visions of white knights in shining armor, anticipating that “help is on its way.” That is so delusional in her world where whites, let alone knights do nothing for her. Is it any wonder why she was adversarial?

What we got was a frightened 19-year-old girl, 18 at the time, who lied about going to the hospital because she didn’t want to see Trayvon laid out dead in his coffin. She lied under oath because she was questioned in front of the boy’s mother. She didn’t want to hurt or offend her. Was it wrong? Yes, but it shouldn’t have discredited all of her testimony. Admittedly, she also lied about her age, but she said she did so because, as a minor, she knew she could deflect the media from herself to her mother, meaning there could be no direct contact.

Where she had me at hello was when she told the Court that Martin called Zimmerman a “creepy ass cracker.” Who would possibly make something like that up to hurt the person she cared so deeply about? Immediately, one would think of anti-racism, like antimatter. Pot? Call the kettle black. Profiler profiling profiler. West jumped on it upon cross-examination.

“Do people that you live around and with call white people creepy ass crackers?”

“Not creepy,” replied Jeantel, “but cracker, yeah.”

“You’re saying that in the culture that you live in — in your community — people there call white people crackers?”

“Yes, Sir.”

This was, in my opinion, an attempt to transfer the racial profiling onus from Zimmerman to Martin. Did it work? The answer is two-fold. No and no. The term Florida cracker came from the cowboys that cracked their whips to herd cattle because they didn’t use lassos. That’s one version. There’s another theory for its usage. Slave foremen in the antebellum South may have used bullwhips to discipline slaves. Hence, they cracked the whip and became known as crackers.

Without going into fine detail over what Jeantel said on the stand, I believe that the longer West crossed her, the more credible she became. He overdid it. Call it overkill. My father put it best when he later told me, “He made the sale, and then he bought it back.”

Incidentally, my father is quite conservative, but doesn’t support either side. What’s your opinion of Jeantel? 

§

Now, we’re left with several problems. One is that the State has rested. Did it prove the defendant’s guilt beyond a reasonable doubt? At this point, I would have to say no, but I do feel that the general consensus among media types is that Zimmerman is guilty of something. The man is, by no means, innocent of everything. The State did cast him in a very negative light, but will it be enough to convict? In my mind, he was a creep the night of February 26.

However…

Looking at (1) FLJI 74 MURDER - SECOND DEGREE

3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

While some may conclude that Zimmerman was depraved when he followed Martin, it’s not as simple as that.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an indifference to human life.

This was the major contention on Friday after the State rested. This was what O’Mara fought vehemently for in his JOA, a Judgement Of Acquittal, argument. What Zimmerman did had nothing to do with ill will, hatred, spite or an evil intent. The judge disagreed and said the State had presented enough evidence for the trial to continue. The jury will return on Monday morning. The State will now cross-examine and we will see how they do.

Some people have wondered during court breaks whether this case would have made it to the courtroom had it not been for Civil Rights leaders. Is that true? I don’t know, but were the original powers that be too quick to jump the gun (no pun intended) and take one person’s perspective as the truth; the shooter, of all people? We cannot simply overlook the accounts of all witnesses, and that should have been enough for an arrest then, not 45 days later. Ultimately, it’s all the victim’s family wanted out of this — a day in court. For that reason alone, I do not believe there will be riots at the courthouse if Zimmerman is found not guilty.

In my closing argument today, I will say that the State did not prove its case. With the possibility of a jury in doubt and the Defense lurking about, waiting to pounce, a conviction on second-degree murder is a long shot. This defense team is very strong and smart. I mean the entire team. In my opinion, it is O’Mara’s trial to lose, and I doubt he will, although I will not predict whether the six-member panel will contemplate a felony manslaughter conviction. There’s no doubt in my mind, something went horribly wrong that night. Just remember, this is not a game, the judge is no one’s teammate, and neither is the jury; not even among themselves, yet the verdict must be unanimous. No timeouts for them. There is no score card.

The Court of July

The Gregorian Calendar has been the most widely accepted date-keeping standard since 1582. It means that, in most parts of the globe, July 4 is just another day of the year. In the United States; however, it’s not. It’s our birthday and we love to celebrate. Yankee Doodle. Feather in the hat. Macaroni salad. It’s a time for festivities of all kinds, including some of the most impressive fireworks displays the world has ever seen. We call it Independence Day because it’s the date signed on one of our nation’s most cherished symbols of liberty, the Declaration of Independence from the British Empire in 1776. This is a holiday to eat apple pie. It’s also a great day to munch on a hot dog while taking in an American staple — a good, old fashioned baseball game. How much more patriotic can we get than that… baseball, hot dogs and apple pie? Well, we can celebrate the US Constitution and our system of justice. That’s a good part of what it’s all about. Many of us saw it in action during the Jodi Arias trial, and before that; Casey Anthony. Now, there’s George Zimmerman. Charged in the February 26, 2012 shooting death of 17-year-old Trayvon Martin, his second-degree murder trial began began June 24.

Speaking of baseball and Casey, and I’m not referring to the 1888 Ernest Thayer poem, Casey at the Bat, July 5, 2011, was the day Ms. Anthony received her declaration of independence from the justice system. Not guilty. While most Americans have been able to enjoy an extended four-day weekend this year, death took no holiday in Seminole County on July 5. Court was in full session. Ironically, two years later to the date of her verdict, the State of Florida rested its case against Mr. Zimmerman. While some might call this the 7th inning stretch, although the defense did put two people on the stand, Zimmerman’s mother and maternal uncle, I do not. Sadly, I have heard lots of people in the courthouse and elsewhere refer to trials almost like sporting events. Who won this day and that day. Points made in the courtroom are points on a scoreboard. Most certainly, any time a matter of life and death is brought into an equation, it’s not a game. Young Martin is dead. He will never play another game of baseball. Zimmerman might not, either. Nelson’s courtroom is not a stadium and she is not an umpire calling balls and strikes. We are not eating Cracker Jacks in a peanut or popcorn gallery. Did I say Cracker?

What we have is the Constitution in action; the right to a fair trial. Part of our Declaration of Independence guarantees that we are all equal.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

There is no doubt that the United States is still a land of golden opportunity. Everyone has a chance to follow the path to success. We see it in action every day, but in some situations, it’s not really equal; not that it has to be, because we do not live under any sort of Utopian rule. We do not live “where nothing in society will belong to anyone, either as a personal possession or as capital goods, except the things for which the person has immediate use, for either his needs, his pleasures, or his daily work.”

That statement is attributed to French thinker and novelist, Étienne-Gabriel Morelly. Where am I going here? Proof positive of the American system at work. Look at Jose Baez, speaking of the Casey Anthony case. He walked into a gold mine. What was he before she came along? An ambulance chaser? A DUI lawyer? While I am making no derogatory claims about his background, Casey got his name from two women sitting in a holding cell at the Orange County Jail. This is not hearsay. Baez told me. The rest, they say, is history. Mark O’Mara, on the other hand, worked very hard throughout his career as an attorney to get to this point. He earned it through his strong convictions and efforts. Granted, Mark NeJame referred Zimmerman to him after turning him down, but he wouldn’t have done so had he given any thought that O’Mara’s credentials were less than stellar. While some of you may wonder why I bring this comparison up at all, let me remind you that you can read about daily trial events in the newspaper. You can see and hear all about it online, on radio and on television. What I am is a pundit; a purveyor of private opinion made public. It’s my own brand of commentary, and here’s some more of it…

§

A very powerful conservative blog, strongly favoring Zimmerman, splintered over O’Mara. Some believed his intention, all along, was to sabotage his client. Well, look at him now. He has done a splendid job dissecting many State witnesses, neutralizing some while turning others into Defense allies. This is the “mark” of a great attorney in the making, although I knew all along it was in him. He’s a natural orator and thinks fast on his feet. There aren’t too many in the field of law that can pat you on the back while stabbing you in the gut — and — at the same time, keep you smiling. That’s O’Mara. That’s class, no matter what his courtroom adversaries and the public may think. His partner, Don West, on the other hand, is blunt and direct; straightforward to a fault. He is quite effective, too. In my opinion, they complement each other. West goes in for the kill and O’Mara soothes the pain. Or is it the other way around? O’Mara numbs you first. Either way, it’s a talented team.

But has it always been effective? No, it hasn’t. Take the case of Ms. Rachel Jeantel, the State’s reluctant key witness. She was the last person who spoke to Martin before his death, other than Zimmerman. That is a matter of fact that cannot be disputed. The problem lies with her testimony, and what is left in its wake is quite complex. It falls into two vastly different camps; the thems that believe her and the thems that don’t. Granted, she lied under oath on more than one occasion, so why should anyone choose to believe her now?

In order to understand Ms. Jeantel, one must consider her style in the courtroom, not just her substance. Let’s say she will never be a diplomat. Nor will she ever be a United Nations interpreter, although she is multilingual. English is just one language and it’s not her first, obviously. De la Rionda established that she grew up in a Haitian family speaking Creole. From what I’ve learned, she lives in a ghetto section of Miami. She and her friends understand urban-speak. She knows hip hop. She comes from a different world of imperfect grammar and Ebonics, living in a different generation; under separate rules of engagement. Ghetto people of all generations have no respect for the police. If you must ask why they disrespect law enforcement, then you know nothing about inner-city culture. Why then, would anyone, in all seriousness, ask her why she didn’t call 911 after Martin’s phone disconnected? So the police would come banging on her door to interrogate her? We’re not talking about someone with visions of white knights in shining armor, anticipating that “help is on its way.” That is so delusional in her world where whites, let alone knights do nothing for her. Is it any wonder why she was adversarial? Her friend was dead at the hands of what?

What we got was a frightened 19-year-old girl, 18 at the time, who lied about going to the hospital because she didn’t want to see Trayvon laid out dead in his coffin. She lied under oath because she was questioned in front of the boy’s mother. She didn’t want to hurt or offend her. Was it wrong? Yes, but it shouldn’t have discredited all of her testimony. Admittedly, she also lied about her age, but she said she did so because, as a minor, she knew she could deflect the media from herself to her mother, meaning there could be no direct contact.

Where she had me at hello was when she told the Court that Martin called Zimmerman a “creepy ass cracker.” Who would possibly make something like that up to hurt the person she cared so deeply about? Immediately, one would think of anti-racism, like antimatter. Pot? Call the kettle black. Profiler profiling profiler. West jumped on it upon cross-examination.

“Do people that you live around and with call white people creepy ass crackers?”

“Not creepy,” replied Jeantel, “but cracker, yeah.”

“You’re saying that in the culture that you live in — in your community — people there call white people crackers?”

“Yes, Sir.”

This was, in my opinion, an attempt to transfer the racial profiling onus from Zimmerman to Martin. Did it work? The answer is two-fold. No and no. The term Florida cracker came from the cowboys that cracked their whips to herd cattle because they didn’t use lassos. That’s one version. There’s another theory for its usage. Slave foremen in the antebellum South may have used bullwhips to discipline slaves. Hence, they cracked the whip and became known as crackers. Is it really a bad word? Get real.

Without going into fine detail over what Jeantel said on the stand, I believe that the longer West crossed her, the more credible she became. He overdid it. Call it overkill. My father put it best when he later told me, “He made the sale, and then he bought it back.”

Incidentally, my father is quite conservative, but doesn’t support either side. What’s your opinion of Jeantel? 

§

Now, we’re left with several problems. One is that the State has rested. Did it prove the defendant’s guilt beyond a reasonable doubt? At this point, I would have to say no, but I do feel that the general consensus among media types is that Zimmerman is guilty of something. The man is, by no means, innocent of everything. The State did cast him in a very negative light, but will it be enough to convict? In my mind, he was a creep the night of February 26.

However…

Looking at (1) FLJI 74 MURDER - SECOND DEGREE

3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

While some may conclude that Zimmerman was depraved when he followed Martin, it’s not as simple as that.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an indifference to human life.

This was the major contention on Friday after the State rested. This was what O’Mara fought vehemently for in his JOA, a Judgement Of Acquittal, argument. What Zimmerman did had nothing to do with ill will, hatred, spite or an evil intent. The fight was started by Martin, he maintained. The judge disagreed and said the State had presented enough evidence for the trial to continue. The jury will return on Monday morning. The State will now cross-examine and we will see how they do.

Some people have wondered during court breaks whether this case would have made it to the courtroom had it not been for Civil Rights leaders. Is that true? I don’t know, but were the original powers that be too quick to jump the gun (no pun intended) and take one person’s perspective as the truth; the shooter, of all people? We cannot simply overlook the accounts of every witnesses, and that should have been enough for an arrest then, not 45 days later. Let the legal system sort this out. Ultimately, it’s all the victim’s family wanted out of this — a day in court. For that reason alone, I do not believe there will be riots at the courthouse if Zimmerman is found not guilty.

In my closing argument today, I will say that the State did not prove its case. With the possibility of a jury in doubt and the Defense lurking about, waiting to pounce, a conviction on second-degree murder is a long shot. This defense team is very strong and smart. I mean the entire team. In my opinion, it is O’Mara’s trial to lose, and I doubt he will, although I will not predict whether the six-member panel will contemplate a felony manslaughter conviction. Something really, really went horribly wrong that night. Just remember, this is not a game, the judge is no one’s teammate, and neither is the jury; not even among themselves, yet the verdict must be unanimous. No timeouts for them.

Real Lawyerin' Goin' Down

To say that Don West is less than brilliant would be a mistake. He’s an extremely intelligent defense attorney and is highly regarded in the Central Florida area, but Monday’s opening statement was not one of his best days to plenty of people. I’ll be the first one to admit, Larry the Cable Guy he’s not; so he might be wise to keep his jokes in the office and not bring them into a courtroom setting, but I did understand the message he was sending. No adult with a driver’s license living in Seminole County was ever expected to be free from all knowledge of George Zimmerman and Trayvon Martin. And he was right. No, the joke didn’t work; however, the point of opening statements is to give the jury a synopsis of the trial each side is about to present. Was West’s opening statement a synopsis? Not in the sense that it’s supposed to be a condensed statement. No, not by any means. Altogether, it lasted around two-and-a-half hours. But was it as bad as all that? I don’t think so. His job was to get the Defense message across, and while there may have been minor lags in some of the juror’s attention, I feel he did do that. He accomplished what he set out to do. Whether the jury absorbed it all remains to be seen, because it was a lot of information, but remember the old saying — you heard it here first! And I think that was the idea. You heard it from him first.

John Guy is a veteran Assistant State Attorney with the Fourth Judicial Circuit. He’s been at it twenty years, and his experience showed up in court during his opening statement just before West’s. He came across like a seasoned professional. Which is exactly what he is. He was clear and concise, and his message got completely across to the ten jurors who sat awestruck over what he had to say. While I did see fidgeting during West’s performance. the jury was glued to Guy. If you saw the jury stare at him once, you saw the jury stare at him the same way twenty minutes later. In other words, they could have been straight from a scene from The Day The Earth Stood Still — totally riveted! The man is in a class by himself.

§

I would describe Tuesday’s action in the courtroom as extremely interesting. There was some incredible lawyerin’ goin’ down in there. I have no desire to go on and on about the day, and I won’t, because you could simply read about it in your newspaper or online. Instead, I will offer one part of the day that really stood out to me, and it’s one that I can explain in a manner you should completely understand.

When State witness Selene Bahadoor took the stand, it pitted one veteran against another in a courtroom drama starring Bernie de la Rionda and Mark O’Mara. Bahador used to reside at 2841 Retreat View Circle inside the Retreat at Twin Lakes community. To get a good picture in your head, think about the “T” where George Zimmerman maintains he was sucker punched and beaten to within an inch of his life. Looking at the “T” from overhead, she lived on the right side, three doors down. That’s on the east side. Trayvon’s body was just west of the sidewalk heading south, virtually outside her back door. 

Why was it so crucial for O’Mara to discredit this witness on his cross examination? Because she told de la Rionda she saw two people flailing their arms and moving from left to right along the sidewalk. On cross examination, O’Mara got her to admit that, in her interviews and depositions, she never mentioned anything about running left to right. All she said was moving. Liar, liar, right?

She also told O’Mara she had no interest in being a media darling, but he told her about the interview she had with Matt Gutman from ABC News. She countered that it never aired. He pressed on. He asked her if she ever “Liked” the Justice for Trayvon Facebook page. She admitted that she had. He asked her if she ever signed a petition titled Prosecute the Killer of Our Son Trayvon Martin at change.org. Yes, she said, she did.

While some people may think all of this adds up to a bad witness, guess again. The State has their list of characters and the Defense has one, too. Robert Zimmerman and the entire Zimmerman family are much more slanted, as are Trayvon’s parents, yet they will be allowed to testify. They are family, you might say. Yes, but they are entitled to their own opinions, and that’s what this comes down to. Opinions do not disqualify you from testifying. When you take that oath, you are expected to tell the truth. Does it mean everyone does? Hell no! But it doesn’t mean you cannot have an opinion. If Trayvon had survived, you’d better bet his opinion of the shooting would be worlds apart from Zimmerman’s. Both would tell their stories and you could decide which version you want to believe, but it won’t matter. The jury is all that counts.

As for running from left to right, why is it so important to O’Mara? Because it would mean that the fighting started farther south; let’s say, closer to Trayvon’s house, and it would mean the fight didn’t start at the “T” intersection after all. Unless the Defendant was running back to his truck from the south side and they caught up there.

But that’s not one of his stories. And on redirect, de la Rionda asked her if any one of the investigators had asked her which direction the movement came from. She said no. As a matter of fact, none of the transcripts made mention of that question. No one asked her. That includes the Defense deposition of Ms. Bahadoor. Mark O’Mara never asked her the direction. Neither did Don West. What was that old saying? You’ll never know if you never ask. Or something like that.

Juries, Fryes and Trials; Oh My!

George Zimmerman and his wife Shellie arrive in Seminole circuit court in Sanford, Fla., Thursday, June 20, 2013. Zimmerman has been charged with second-degree murder for the 2012 shooting death of Trayvon Martin. (Gary W. Green/Orlando Sentinel/Pool)

§

Who are They?

How many times have we heard the word they when someone makes a statement about an alleged factoid picked up from somewhere — on the nightly news, perhaps? It could be true, it could be false, or it could be a mixed up mess of information that formed at a later date inside the head of the person now telling you about them.

“That’s what they said!”

“Who’s they?” I always respond. Invariably, no one ever knows who they are, but they heard it or read it somewhere. This was an everyday occurrence during the Casey Anthony case and it is the exact same thing here. It’s not all that unusual. After all, isn’t this how rumors start? So and so said… Thus, they are never clearly identified and, therefore, they don’t really exist. Do they? Well, maybe someone said something, but without a name behind the theys of the world, there is no way I would accept any kind of statement without substance.

In order to not accept the theys of this trial, it means we need to tuck them away in our pockets and leave them alone until the end. We need to try to look at this trial as open and fair minded as humanly possible — just like the jury. While this is a tough one to abide by, it’s something we need to remind ourselves of every day for the next month. We need to keep in mind that many of the legal analysts and reporters working for local, network and cable TV companies are, by their very nature, true-life criminal defense attorneys. That means their opinions could very well be skewed in the direction of the Defense.

If you are not aware, Mark O’Mara was hired by WKMG to be one of the legal analysts during the Casey Anthony trial. WKMG is the local CBS affiliate. I must say that Mr. O’Mara impressed me tremendously back then. No, not because of his legal analyses. It’s nothing personal, of course; I was simply too busy in the courtroom and writing for the magazine at night. Because of that, I never saw or heard any TV pundits. What struck me in such a positive way was how extremely polite and professional he was. He went out of his way to greet me by name when we were near each other. That was a truly nice gesture, and I never forgot it.

Individual and Traditional Voir Dire and Jury Selection

At 3:00 pm on Thursday, June 20, 2013, a jury was seated in case 12-CF-1083-A; the State of Florida v. George Zimmerman. One Hispanic woman and five white women. The four alternates are composed of two women and two men; all white. These jurors, carefully selected by the prosecution and defense teams, are not going to witness anything from TV legal analysts or correspondents working the field. Everything these ten people see and hear will come from within the confines of the courtroom. Bernie de la Rionda and his team and Mark O’Mara and his team will be the only theys they will hear. Certainly, their opinions are polar opposites and they all think they are right.

I never took the trip to the Pinellas County Criminal Justice Center in Clearwater to sit in on jury selection for the Casey Anthony trial. I wouldn’t have been able to afford a hotel room for the length of time it took, but I did watch the proceedings on live television. It’s just not the same. As this process was getting underway, several journalists and a handful of attorneys asked me if I had ever experienced jury selection. I said no. You are in for a fantastic experience, Dave, they all said, and they were right. To be able to see it all unfold in the flesh is an amazing thing. You can really sense the interaction between the hard working attorneys and the prospective jurors as they are questioned individually and collectively. During voir dire, the expressions on all of their faces were as diverse as the fields of work they are involved in, including being unemployed and retired. Homemakers. Engineers. Teachers. Book readers. Fifty Shades of Grey? A colorful lot, indeed!

Some of the 100 were dismissed early because of bias or other reasons, including hardships. I was very fastidious in my note taking as they filed in one-by-one for questioning. During the meager one hour lunch break Judge Nelson gave us each day, a couple of us discussed who we expected to make the cut and who wouldn’t. One in particular was E-6. We thought, for sure, that she wouldn’t make the grade, but in the end, she did, despite a vigorous campaign against her by de la Rionda.

While I paid close attention to each person interviewed, something about E-6 intrigued me. To be honest, she reminded me of Angelina Jolie a little. First of all, let me set the record straight by telling you that Jolie has never been my kind of woman and, to be honest, I am happily in love with someone I find to be much more beautiful, so please delete that element from the equation. This is just a descriptor. E-6 sat in the front row, in plain view.

She stated that she hadn’t formulated an opinion when questioned singly during the pre-trial publicity phase. OK, fine. During the general voir dire phase, she was very much involved in the process. That’s what caught my attention; her involvement, animation and posturing. It was during this phase that Judge Nelson made the announcement the jury would be sequestered. I watched this woman suddenly and dramatically change her demeanor. She became somewhat distraught looking, although not depressed. She certainly looked dazed. She stared into nothingness and rocked back and forth slightly. Slowly, she came out of it and eventually, I detected a slight smile. Eventually, she snapped out of it completely and became herself again. This was not an unusual reaction from anyone who’s told they would be locked up for a month. But, while I cannot say for certain, what I gathered from her was this, only in slow motion:

Oh no. Sequestration? No way. I don’t want to be a juror… Away from my two children. Away from my husband. No family life. No friends. No cooking. No fun. No sex. What will I do? This is a real problem. Hmm… What to do… No it’s not. I can see this working. This could turn out fine. I can take advantage of this. It could be my ticket. I can write a book!

While I have no idea what she was really thinking, it’s what it appeared like to me. Here we have an attractive young woman who will look good in the limelight of cameras after the trial. She will definitely have an intriguing story to tell. Yup, that could be it. To be fair, she has every right to do so, and she wouldn’t be the first one to tell a story. I am not criticizing her objectivity, so don’t even go there.

While I studied other possible jurors, I use E-6 to illustrate what really goes on in a courtroom during jury selection. There’s a lot going on, but what about the process itself? How do the jurors get selected in the end? I’m not talking about the Thursday afternoon arguments in front of the judge — meaning the peremptory challenges and challenges for cause. We all heard and watched it on TV. We absorbed it. If not, see it here.

What you couldn’t see were the three rows of forty people.They were seated in each chair for a reason. Similar to a draft lottery, this is the easiest way to explain it. As every summoned person enters the courthouse and sent to the jury room, they are given a new name, like L-01 or S-69. As voir dire progresses and some are eliminated, others move on to the next level. That’s where the forty people come in. They are randomly given seat numbers 1 through 40 and that’s where they sit in the courtroom. Seat number 1 is in the front row and seat number 40 is way in the back. Odds of that person, or anyone in the back row, being chosen are next to nothing because the numbers are called in order, starting with number 1.

Personally, I feel that both sides are content with the jury of women, although de la Rionda tried several times to strike E-6. In the end, the jury will be made up of women because the jury pool happened to turn out that way. The ratio was 2-1 women. I am sure they will be fair and just. 

§

During the traditional phase of voir dire, when those forty people were addressed as a group by Mark O’Mara, I noticed something peculiar. At an earlier hearing, on April 30, something O’Mara may have said must have sparked an idea in my head. I had to search extensively though my notes and comments before I found something I wrote on an article comment posted at the Daily Kos site. What made me think of it, I don’t recall, but this is what I wrote, in part, in that comment dated May 4:

I believe the Defense may argue that Zimmerman felt Trayvon’s cell phone was a weapon; that Zimmerman had no idea what the kid had in his hand. Was it a gun? Of course, that would change the whole scenario and the State could reasonably contend that it shows the gun was drawn earlier, which I feel is a good possibility. Trayvon fought for his life over that gun.

What happened in the courtroom this past Thursday, seven weeks later, set off all sorts of bells and whistles in my mind. I had an Aha! moment, whether it is something that will pan out or not. Watch this part of the video replay starting here. In it, O’Mara brings out a cell phone to illustrate a gun; something he could not bring into the courtroom. Was it a subliminal way of hinting at a dialog that may take place some time into the trial? To me, a cell phone has now been introduced as subtly as possible as a potential firearm. Could Trayvon’s cell phone have been perceived as a handgun? Just a thought, but George Zimmerman’s stories have changed over the course of time. 

Excuse me while I NIST the Skype

To be honest, I was never sold on the State’s expert witnesses. I was rather skeptical because they were originally hired by newspapers. I had a real problem with both experts. In her order, Judge Nelson wrote:

The State’s witness, Mr. Thomas Owen, has been involved in forensic audio work since 1981, He was retained after the shooting by a newspaper to attempt to identify the person(s) screaming in the 911 call.

For the software-reliant analysis, Mr. Owen used software called “Easy Voice,” a software program he markets and in which he has a small financial interest. Easy Voice recommends a sample length of 16 seconds to conduct its analysis. Mr. Owen only isolated seven seconds of screams from the 911 call. The seven second sample was rejected by the Easy Voice software program. To correct this problem, he ran the seven second sample twice (sometimes referred to as “looping”). Based upon conversations with sales representatives for the software manufacturer, he believed looping was an appropriate solution. As part of his technique, he adjusted the pitch of the known spoken voice sample of the Defendant to raise it up to the same pitch as the screams in the 911 tape.

The issues here are very central to the decision made by the judge in rejecting him. Mr. Owen markets the software. He has an express interest in the company. He looped the samples in order for the software to work, and changed the pitch of one of them. The judge further stated:

According to Mr. Owen, he also “cleaned up” the audio of the Defendant’s nonemergency call in an effort to identify a previously unintelligible word. Using audio editing software, he made a determination that the unintelligible word used by the Defendant was “punks.”

No other entity; governmental or from the private sector, was able to ascertain what Zimmerman said. And speaking of what was said, the second expert for the State, Dr. Reich, was full of mondegreens. What’s a mondegreen? Let me put it this way. At the end of the Beatles song, Strawberry Fields Forever, you may think you hear something that ultimately started a huge rumor back in the late 1960s — that Paul McCartney was dead:

“I buried Paul” was actually “cranberry sauce” spoken by John Lennon. It was very faint, but even at a higher volume, it was still easy to mistake what was actually said. 

Back to Reich. According to him, he heard words spoken by the defendant and the victim; disparaging words. No other expert concurred. It was virtually impossible to determine who was saying what on any of the 911 recordings, let alone make out anything else. According to Judge Nelson:

With regard to the identity of the person(s) making the screams, Dr. Reich reached the “tentative” conclusion that almost all of the screams heard in the 911 tape were made by Martin. In reaching his conclusion, Dr. Reich assumed the following: the screams could only have been made by one of two people, either Martin or the Defendant; the screams ended upon the gunshot being fired, leading to an inference that the person screaming had been shot; and the frequency of the screams indicated that the speaker’s vocal tract had not completely developed, leading to a conclusion that the person had not reached adulthood.

In addition to his opinion about the identity of the person screaming, Dr. Reich testified that he was able to hear words on both calls that have not been heard by any other witness. He identified an unusual speech pattern in the Defendant’s nonemergency call and, upon further analysis, claimed to identify several distinct previously unheard words. Similarly, he was able to hear several previously unheard words and statements in the 911 call. Mr. Owen testified that he was able to detect these words by commonly-used digital enhancement and transcription software.

While the judge could have allowed the testimony, I believe she made the right decision regarding State experts. The Defense experts were extremely credible and they debunked the junk. Was this a major blow to the State as some legal analysts contend? Remember, legal analysts are generally criminal defense attorneys and this is the side they will invariably take. Most importantly, keep in mind that the second-degree murder charge was filed long before any newspapers hired these guys and, in the end, the defense won’t be able to prove the screams came from their client, either. While it seems like a Defense victory, no one is the winner. Well… except for the jury that won’t have to put up with testimony that can only be understood by people in the field of spectrographs, human voice identification and biometrics, not to mention the National Institute of Standards and Technology. Oh, these glorious times of emerging nanoelectronics industries and applications in forensic testimony!

The Trial

Assistant state attorney Bernie de la Rionda, left, and lead defense attorney Mark O’Mara leave the courtroom after addresses a series of pre-trial issues with Judge Debra Nelson during George Zimmerman’s trial in Seminole circuit court in Sanford, Fla., Friday, June 21, 2013. Zimmerman has been charged with second-degree murder for the 2012 shooting death of Trayvon Martin. (Gary W. Green/Orlando Sentinel/Pool)

I expect the trial to be most gripping. While certain aspects of jury selection seemed boring to some, I never quite saw it that way. Sitting in the courtroom offers many advantages. We can see the quirks in every player. We pay attention to everything that surrounds us; the people we sit with on the media side, the public sitting on our right, the families of the Victim and the Defendant, and everyone on the other side of the gallery. There’s no way to feel the atmosphere of the room unless you are present. That’s not to say there’s nothing you can pick up by watching it on TV or on a live Internet feed. No, quite the contrary, but tension is not something that can be conveyed over an electronic conduit. Hopefully, I can do that in my writing — here, on the Daily Kos, and on my Facebook page, where you are more than welcome to friend me. I will update when I can, in my own inibitable way. 

During traditional voir dire, Bernie de la Rionda came across as a preacher — a teacher and a lecturer of sorts; like you’d find at a pulpit or lectern — in front of a congregation or large body of students. While I found him to be quite good, the following day, Mark O’Mara took center stage and he was more like a Sunday School teacher; a country lawyer with a more relaxed style. He changed the entire mood of the courtroom, including the potential jurors, and created a lot more banter between them. In my opinion, O’Mara could influence the jury by his very style, and de la Rionda should take that into great consideration. One fires up the crowd and the other settles them. 

De la Rionda is a man of great conviction. He is deeply religious and can quote scriptures from the Bible like there’s no tomorrow, regarding everything you throw his way. He is one of the best prosecutors in the state of Florida and has a solid team behind him. O’Mara? I don’t know anything about his religious beliefs, but I have known all along that he’s an excellent attorney and as sharp as they come. So is Don West. They are extremely crafty and cunning.

I would make the case that de la Rionda and O’Mara have very little knowledge of each other except for what they’ve learned since their first courtroom battle, soon after Zimmerman was charged. I believe this will be one of those all-time courtroom dramas that will be read about for years to come. I can’t wait until tomorrow. Please join me.

Please see Daily Kos

Voir Dire Straits

George Zimmerman enters the court room on the fifth day of jury selection for his trial in Seminole circuit court in Sanford, Fla., Friday June 14, 2013. Zimmerman has been charged with second-degree murder for the 2012 shooting death of Trayvon Martin. (Gary W. Green/Orlando Sentinel, Pool)

A lot could be said about the first week of jury selection in the George Zimmerman trial, but I will spare you most of the somewhat boring and quite tedious details. I must tell you that it’s an intense study into the human psyche. Some of those interviewed seemed to beg for the chance to sit on the jury; as if to say (quietly) OUT LOUD that there could be a book deal down the road. At least, that’s the perception made by some of my media peers.

There’s also the matter over knowledge of the case. No one in Sanford, let alone all of Central Florida, is expected to be mentally blind to the tragic shooting death of Trayvon Martin by George Zimmerman. To deny knowing anything about it is to be so out of tune with current events, it’s close to incompetency. Or it’s a giant lie — obviously knowing more than one would admit to. Either way, this is the type of pre-trial publicity questioning that should qualify or disqualify a prospective juror. It’s like sifting through the weeds of a garden to get to the root vegetables; like carrots hidden under a lush layer of rich soil, waiting to be plucked and added to the recipe now simmering inside the Seminole County Courthouse.

When making a good stew, one must be very careful about the ingredients added. Too much salt is not good. Neither is too much pepper…. which leads me to a working segue — one of the potential jury prospects — E-7, a white male in his 50s with salt & pepper hair and a goatee. Soon after questioning began, I turned to the person to my left, a woman from ABC network news, and whispered that I recognized him from somewhere; like we had met or something. I couldn’t place him then and still can’t.

Initially, I thought he was quite smart and open. He seemed pretty square and strong in his tenets. I noticed he was a bit adversarial while facing Bernie de la Rionda, but he said he liked playing the role of devil’s advocate. OK, fine, but when Don West questioned him, I began to feel a bit leery and said so in my notations. I wrote that he was a bit cocky and sure of himself. Something about his earnest sincerity began to unravel. Here’s a guy who stated that he watches both FOX and MSNBC. Open minded? At first glance, yes, it appeared that way, yet he paid no attention to either side. That didn’t compute in my head. He was someone, I wrote, who says he knows nothing, but he “knows too much, perhaps. Or a know it all.”

The final thing I wrote was “I don’t think so,” meaning, he will not sit on the jury. 

When he left the courtroom after questioning, I was surprised when the judge called him back to ask about a comment made on Facebook. Did he write it? No need to explain why. Just say yes or no. He admitted to it and I knew right then and there he was doomed. This man, Jerry Patrick Counelis, is a pathetic human being. Sick. Everyone from both sides wants this to be a fair trial. Counelis tried to infiltrate the jury; to force his pro-Martin agenda on everyone else. Had he been selected, it would have been a terrible blow to justice.

Two days later, Counelis returned to the courthouse to express his concern over the lack of anonymity and privacy during the selection process. Huh? He was only happy to be questioned publicly Wednesday after leaving the courthouse. He gladly appeared on local and national television later that day and night and he has concern over WHAT? When I stopped for coffee at my local 7-Eleven on Thursday morning, an employee told me he was interviewed right in the parking only the day before. Because he protested loudly at the courthouse on Friday, kicking and screaming and attempting to get back to the jury room, he was trespassed until the end of the trial. In my opinion, a trespass was not enough. Instead, the man should have been arrested on the spot and held without bond until the end of the trial; then tried in criminal court. On what charges? Whatever could legally be thrown at him. He is the epitome of social immorality. Thankfully, he was caught by someone from the defense side and was stopped dead in his tracks. Imagine the dire consequences…

On Thursday, E-81 took center stage. She was an attractive woman who told de la Rionda that she thought Zimmerman was innocent. One of the first things that caught my mind was a simple statement that came out of her mouth. Trayvon Martin wasn’t beat up like George Zimmerman. He was dressed like a street fighter. Duh… he only had a bullet in his heart.

She made up things as she went along. Zimmerman had blood on his clothing. Down his collar and on shirt. Trayvon was a pot smoker. Guns. Street fighting. Parents weren’t aware he was going down the wrong path. George was just doing his job at neighborhood watch. Drugs made Trayvon aggressive. George was protecting his neighborhood.

She told de la Rionda she wouldn’t be able to erase it from her mind, which was pretty well made up. She told him she was quite educated. I laughed under my breath. Every American has a right to protect themselves. The more armed people; the better. She admitted she wanted to donate money to the Zimmerman defense, but didn’t.

When O’Mara took over the questioning, she mellowed to a good extent. Where she had been more adversarial to de la Rionda, she was amenable to the cordial defense attorney. When prompted, she said she could follow evidence and court instructions. If Martin’s alleged street fighting is “not presented at trial, she would not consider it,” she added. She said she had “no real concerns about leaving opinions out of the equation,” I didn’t believe her one bit and made note of it. 

Baloney! She sways in the breeze, but is fervent in her beliefs. I am convinced of it.

She was summarily dismissed later on.

This leads me to a very interesting and important part of jury selection. How many strikes does each side get? When we broke for lunch that day, someone sitting on the public side addressed the possibility that the defense was forcing the state to use one of their strikes on E-81. After all, she seemed to be more neutral by the time O’Mara was finished questioning her, but was she, and did it really matter? A local legal analyst said that the Defense had the State on the run, but was it true? Or was it merely another opinion formed by a criminal defense attorney turned temporary legal analyst?

In the state of Florida, one of the frequent questions concerns challenges from each side. This is directly from an e-mail sent out from the Court Services Administrator/PIO to all credentialed journalists:

Q. How many challenges does each side have in jury selection?
A. Because this charge is punishable by life in prison, each side will have 10 peremptory challenges and unlimited challenges for cause. Challenges are also commonly referred to as strikes.

Law.com describes peremptory as:

[T]he right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is distinguished from a “challenge for cause” (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial. The number of peremptory challenges for each side will differ based on state law, the number of parties to a case, and whether it is a civil or criminal trial. The usual phrasing used by lawyers exercising the challenge is “Juror number seven may be excused.”

§

While I’m on a legal roll, let me continue by explaining why there are six jurors on this case:

Florida Statute 913.10 
Number of jurors. — Twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases. History.—s. 191, ch. 19554, 1939; CGL 1940 Supp. 8663(198); s. 87, ch. 70-339. 

The Sixth Amendment to the U.S. Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

In an 1898 ruling, the Court wrote, “a jury comprised of 12 persons, neither more or less” was a requirement. If that’s the law of the land, then what happened? Why six? In Williams v. Florida, 399 U.S. 78 (1970), the Court reconsidered the size of a jury and affirmed the criminal robbery conviction made by six people. The Court ruled that the Sixth Amendment says nothing about jury size. From hence on, it rejected the earlier decision and held that six was sufficient to satisfy the Sixth and Fourteenth Amendments, which, in part, states that:

[…] No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In 1979, the Court again visited the issue of jury size and unanimity. In Burch v. Louisiana, 441 U.S. 130 (1979), they found that Louisiana law which allowed criminal convictions on 5-1 votes by a six-person jury had violated the Sixth Amendment (along with the Fourteenth Amendment) right of defendants to a trial by jury. In a state criminal trial:

We thus have held that the Constitution permits juries of less than 12 members, but that it requires at least 6.  And we have approved the use of certain nonunanimous verdicts in cases involving 12-person juries… This case lies at the intersection of our decisions concerning jury size and unanimity… But having already departed from the strictly historical requirements of jury trial, it is inevitable that lines must be drawn somewhere if the substance of the jury trial right is to be preserved.

In other words, if a jury is to be as small as six, the verdict must be unanimous. Therefore, in Zimmerman’s case, a guilty verdict can only be rendered unanimously or not a all.

§

I will have more to write about this case as the trial progresses. This coming week should prove to be much more exciting than the first one, although I do find the whole thing to be quite fascinating and educational.

There are questions I am asked during this tedious process I sometimes have trouble answering. One, for example, is about George Zimmerman. What does he look like in court? What are his expressions? I can tell you this. I sit behind the Defense. All journalists do. I cannot see George’s face unless he turns sideways. I occasionally put the live feed on one of my iPads, but it’s a battery drainer; however, I do have my spy, code name Pea Pod, who keeps me informed while I stare at the back of Zimmerman’s head. For those of you who cannot watch the trial, he is more animated now than he was during the hearings. He must be! Potential jurors are watching. He is taking notes and smiling. He is paying close attention to details. This is very normal. Jodi Arias was transformed into a librarian by her attorneys. During the Casey Anthony trial, her seat was adjusted to its lowest elevation so she would appear to be too tiny to have murdered her child. Poor, poor, Casey; sitting next to Cheney Mason, who was much, much larger. He put his arms around her to comfort her; squeezing her shoulder. He patted her hands as they rested on the table. Pity, pity, pity party.

In Zimmerman’s case, he pretty much has to fend for himself, whether you like him or not. He weighs over 100 lbs more than the day he shot Trayvon. The jury must be made aware of that. While he most certainly will never be a demure librarian, he will never be a cop or judge, either — something he aspired to be — no matter what the verdict.

And Trayvon? Whatever some of you may think, he was not a 6’3” monster weighing over 180 lbs, and the jury isn’t going to hear that he was.

See also: Daily Kos

Zimmerman Jury Selection Begins

George Zimmerman’s wife, Shellie, with the family’s security guard, watches the proceedings in Seminole circuit court on the first day of her husband’s trial, in Sanford, Fla., Monday, June 10, 2013. Zimmerman is accused in the fatal shooting of Trayvon Martin. (Joe Burbank/Orlando Sentinel)

The last time I was called for jury duty, it was a criminal case. I had a terrible flu virus at the time, but I still had to wait until eventually being sent home. There was no way any person in that courtroom could have been unaware of my illness. We were all brought into the courtroom together. I don’t remember how many of us there were, but it seems to me it was well over a dozen. Each one of us was asked a handful of questions by each side and that’s as far as I got. When we took our first break, I was sent packing.

I think the Court is given leeway in jury selection, especially in non-capital cases such as this one. It’s second-degree murder George Zimmerman is facing and that’s why it will be a panel of six jurors. Generally, two alternates suffice, but this case is very unusual and high-profile, so Judge Nelson was wise to opt for two more than the norm. There will be 6+4.

From what we saw in the courtroom today, it’s a very tedious process. Aside from early motions, most of the morning and a good chunk of the afternoon — except for lunch, of course — dealt with explaining the process to the 100 jurors brought in for the day; asking them to fill out preliminary questionnaires and to introduce the defendant to them. The judge then went through important legal details with the attorneys while they tried to decipher what some of the people wrote, before finally sitting them down one by one to ask more detailed questions that are intended to go beyond the scope of the questionnaire. Four were interviewed today, and I expect a lot more tomorrow; perhaps a dozen or so — maybe more. I hope. 

The people interviewed today will not be picked for the jury, in my opinion. B-12, up first, was a female. She seemed to want to be on the panel. She also said she had heard that Zimmerman was following the victim. B-29 moved to Seminole County from Chicago four months ago. She’s a Certified Nursing Assistant. She sounded compassionate enough; too much, I’d say, because she said any child’s death would affect her as a mother. She also said it would be a burden to leave her children without their mother if sequestered. She did say it wouldn’t be impossible. She has a 19 year old, a 10 year old, and 3 year old twins. B-30 will be remembered for saying he’d rather be called thirty than be sixty-five. He was asked questions by a local TV reporter several months ago while dining with family in a Sanford restaurant. He would be perfect for the defense because he seems to fit the type of mold they are seeking as an older, more conservative male. He could be a gun owner, although nothing like that was made clear. It’s interesting to note that the prosecution went easy on him and it was actually the defense that elicited more information about his news and TV watching habits, which may have hurt his chance to be selected. Sadly, he also lost his wife about the same time Trayvon was shot and killed. Finally, we have B-76. She seemed to be very open-minded. She and her husband do not watch cable television. As a matter of fact, they have an old-fashioned antenna in their attic. She was aware of some of the court hearings. She had heard of the case prior to and leading up to Zimmerman’s arrest. She saw Mark O’Mara on the news. She saw Trayvon’s parents on the news. When asked, she said she recognized the boy’s mother sitting in the gallery, but not one of the family attorneys, Natalie Jackson. Ben Crump was not present at the time. She and her children had discussed the case, but she did say they are very open-minded and hadn’t formulated an opinion. Remember, the law says you don’t have to be stupid about the news; you just have to keep an open mind.

From now on, I will probably not pay this much attention (in my writing) to the details of each interviewee unless something important stands out. We’ve got, potentially, 500 people to go through, folks, and I’ve got a feeling it might take two weeks before we see the last person seated. After today, that’s the general consensus in the courtroom. What’s of utmost importance is that attorneys from both sides are allowed plenty of free space in their line of questioning. Not only is this about the death of a 17-year-old boy, it’s also about someone who could spend a minimum of 25 years in prison. It’s extremely important the jury that’s seated is as fair as they come, no matter what you or I personally think.

I think it’s also important to keep in mind that there’s a Frye hearing to conclude. We’re in it for the long haul. I know I am.

Freeze-Fryed in Florida

© All rights reserved by Orlando Sentinel photography

Looking at three days of court proceedings, point and counterpoint arguments could be interpolated in terms of physics, introducing similarities and differences between matter and antimatter, in particular, matter/antimatter asymmetry, where matter particles share the same mass as their antimatter counterparts; although the electric charges are opposite, and matter dominates antimatter by the billions, thus, creating a lack of harmonious balance and arrangement.

Did you understand that? I didn’t think so, and I’m not going to go in that direction or off on any sort of tangent. Nope, no circumlocution. Well, I could, but let’s stick to the matter at hand and discuss the law instead of the testimony we heard from State and Defense “expert” witnesses. We could discuss them until our brains are fried, or we might just wait until the Frye hearing continues…

A Frye Hearing

A Frye hearing, also called the Frye standard, is a special type of motion in limine filed prior to or during a trial. Defense or State experts from fields of forensics explain their findings in court and the opposing side issues counterpoints from their own experts, stating that the reasoning behind the testing and rationale is pure junk. In other words, it’s not commonly accepted in the scientific community; therefore, it shouldn’t be admitted into evidence. The testimony should be disallowed because the testing information isn’t really based on true scientific principles. Indeed, it can be controversial at times, but is the junk pure bunk? In this particular case, will any of the State’s testimony be allowed at trial? That’s the problem facing Judge Debra Nelson. Unfortunately, testimony from one of the Defense experts was delayed and the Frye hearing was left in the lurk for the time being. The judge had to freeze proceedings because the expert was stuck on a tarmac somewhere. There was no way to continue.

Is that legal? Of course it is. While jury selection begins Monday morning at 9:00 am, questions the Defense and State plan to ask prospective jurors were turned in weeks ago. The Court has discretion over what line of query will be allowed and she will let both sides know on that morning. The line of questions will have nothing specifically to do with Frye or anything related to the issue. In other words, George Zimmerman’s defense team won’t ask about matters directly concerning what is and what isn’t acceptable scientific testimony, and what should or shouldn’t be admissible during trial. Meanwhile, the Frye hearing will continue at the discretion of the judge; after voir dire has been suspended for the day — or days. Hmm… for some strange reason, I expect to spend long days and lonely nights contemplating this trial.

The Daubert Standard May Be Coming…

We should now understand that a Frye hearing is an attempt to exclude scientific evidence. This is the standard in Florida at the moment. Come July 1, it may change if the governor signs the Daubert bill recently enacted by the state legislature. Ha! Right in the middle of this trial! Wouldn’t you know it!

So what’s the Daubert and how does it differ from Frye? In Frye:

The burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle of the test and procedures used to apply that principle to the facts of the case at hand. The trial judge has the sole discretion to determine this question and general acceptance must be established by a preponderance of the evidence. (See: The Frye hearing in Florida: an attempt to exclude scientific evidence.)

In Daubert, there are relevant factors involved in establishing the validity of scientific testimony. Daubert was amended on April 17, 2000, to include:

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

A 1993 court ruling, Daubert v. Merrell Dow Pharmaceuticals, held that Rule 702 of the Federal Rules of Evidence did not rely on the Frye general acceptance test as a basis for assessing the admissibility of scientific expert testimony. Instead, it incorporated a flexible reliability standard.

Rule 702 was amended again, on Apr. 26, 2011, and took effect that December 1:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(A) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(B) The testimony is based on sufficient facts or data;

(C) The testimony is the product of reliable principles and methods; and

(D) The expert has reliably applied the principles and methods to the facts of the case.

In Daubert, the court held that the subject of any expert’s testimony must establish a standard of evidentiary reliability based on scientific knowledge. There are five criteria articulated by Daubert:

(1) Whether the methods on which the testimony is based have been tested;

(2) The known or potential rate of error associated with the testing;

(3) Whether the method has been subject to peer review;

(4) Whether the method is generally accepted in the scientific community;

(5) Whether standards exist for the use of the method and whether the expert has followed these standards. (See: Daubert Expert)

OK! OK! Enough of the legal jargon, Dave! What’s the bottom line? In essence, Frye has to do with the admissibility of scientific evidence and Daubert deals with the admissibility of an expert witness’s testimony. Under Frye, if either side wants to introduce evidence, it must demonstrate to the court that the scientific community has reached a general acceptance of the basic methods and principles used to come to a conclusion. Except for one little detail…

[The Frye motion] is usually used to preclude or exclude scientific evidence that is not the result of a theory that has “general acceptance” in the scientific community.

[T]he conclusions reached by the expert witnesses need not be generally accepted. Thus, a court’s inquiry into whether a particular scientific process is generally accepted is an effort to ensure that the result of the scientific process, i.e., the proffered evidence, stems from scientific research which has been conducted in a fashion that is generally recognized as being sound, and is not the fanciful creations of a renegade researcher. (See: Frye Motion Law & Legal Definition)

Sound confusing? It is! Whether you like Frye or Daubert, and whether or not Daubert is signed into law by the governor, the judge will have the final say on expert testimony. Period. I have no idea how this court will rule — not at this time — nor will I try to second-guess Judge Nelson from a criminal defense or prosecution perspective. I do expect that she has taken every bit of this into consideration, though, and will rule accordingly.

Until there’s more on the matter, jury selection is coming, and that’s what I’ll focus my efforts on. Believe me, if something comes up, you will be the first to know because I will be reporting from inside the courtroom.

Cross posted at: Daily Kos

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Do I Deserve To Die Too?

When I was 23-years-old, I was arrested and charged with possession of a CDS and for being drunk and disorderly. I was with a good friend, who was also charged. CDS stands for Controlled Dangerous Substance, and in the mid-70s, that included… shake and shudder… marijuana. Holy catnip! The charges were way more than trumped up, and the arresting officer, Jack Demeo, was later fired from the Delaware Township Police Department in New Jersey and banished from ever being a cop again. Anywhere. He was bad news and a disgrace to all fine, upstanding law enforcement officers the world over. His downfall? He flashed his badge at an Atlantic City casino and asked for gambling favors and free drinks. He said he was from the NJ Division of Alcoholic Beverage Control.

The charges against me were dismissed before the trial began, but during a Motion to Suppress Evidence hearing, Demeo testified that he was professionally trained by the military to sniff out marijuana. Really? All that was found was one stubby, little roach — 2/10 of a gram — at the bottom of my friend’s ashtray. Had we known it was there, we probably would have smoked it that night and gone out for M&Ms. Skittles weren’t around in those days. As Demeo and his fellow officer traipsed us into the station, right across from where I lived in the blinking light town of Sergeantsville, I asked him what we were being charged with…

“Being drunk and disorderly,” he screamed back. Of course, we weren’t drunk and disorderly. My friend was dropping me off at home. We were minding our own business — sound familiar? As a matter of fact, the illegal substance — the killer weed — wasn’t found until we were inside the station and Demeo had a chance to run out to retrieve the vehicle’s ashtray, return, and dump it on his desk. “AHA!” he exclaimed as he sifted through the cigarette butts and held up the overwhelming piece of evidence. “I got you now.” 

Today, the whole experience is a joke, and I’ll be the first person to admit I smoked pot back in the day. But so did several of our presidents. Did they decide to start a war because they were high on ganja? Hmm… according to George Zimmerman’s defense logic, that could be the case. Think about it. George W. Bush. Barack Obama. Former pot smokers and warmongers. Bear in mind, there were no wars under Bill Clinton; not technically, and, in Zimmerman’s favor, Clinton never inhaled the stuff. Perfect evidence! Mark O’Mara and Don West may be onto something but, to be fair, impartial and to add a legal disclaimer, there’s no evidence that any president smoked marijuana while in office.

I haven’t smoked pot in 20 years, but 20 years ago, I was 40. I first smoked it when I was 16. By 17, the age Trayvon Martin was when he was shot and killed, I was a seasoned smoker, sometimes toking before, during, and after high school. I never missed a day of work because of it. 24 years later, I knew a lot about the stuff, although my interest had really waned by then. Mostly, I was a recreational user throughout the years. I was never addicted to it and it led to no other drugs. Today, it’s not considered a “Controlled Dangerous Substance” in most states, and some have even legalized its use. In my opinion, it was never dangerous unless you consider driving under the influence, but it’s nothing like booze. When I smoked pot, it was usually done with my friends, we were too lazy to drive anywhere, and we sat around listening to Moody Blues and Pink Floyd albums eating whatever food we had; like Cheez Doodles and 2-day-old pizza. The munchies. We chilled out. Never, ever, ever did we think about fighting among ourselves or with anyone else. All we cared about was was getting high and not allowing anyone to Bogart that joint.

§

Now, to the matter at hand. In the DEFENDANT’S REPLY TO STATE’S MOTION FOR PROTECTIVE ORDER/MOTION IN LIMINE REGARDING TOXICOLOGY, Donald West argues:

As part of the autopsy protocol, the Medical Examiner submitted Trayvon Martin’s blood for laboratory analysis. Among the findings includes a positive level for THC and its metabolite. The active THC was measured at 1.5 ng/mL whereas the metabolite was measured at 7.3 ng/mL. This level is sufficient to cause some impairment (although it is considered to be less than that required for a DUI arrest) according to the State’s toxicologist, Dr. Bruce Goldberger. […] Dr. Goldberger opined that Trayvon Martin may have used marijuana within a couple of hours of his death or that it could have been longer than that depending on whether Trayvon was a chronic user or an occasional user.

Was I a chronic or occasional marijuana user? You can only have an opinion — depending on how you think. Are you really qualified? If I smoked it last week, would I be too impaired to write this post? Bullshit. Here’s where the reply from West gets stupid, ludicrous and just plain idiotic. Remember, my disgraced arresting officer said he was trained to sniff out marijuana. In his defense, at least he graduated from the police academy and didn’t draw his weapon on me. Zimmerman, on the other hand, never graduated anything beyond high school. (See: Records show George Zimmerman got D’s in criminal justice classes.) The Defense reply continues:

In George Zimmerman’s non-emergency call to the police, he describes the person, later identified as Trayvon Martin, as appearing as though he was “on drugs.” Additionally, on close inspection of Trayvon Martin’s physical appearance at the 7-Eleven, where he was recorded on video within an hour of his death, he “sways” at the counter as if he’s under the influence of some substance. Taken all together, it is likely that Trayvon Martin was under the influence of marijuana at the time of his death and that his thinking and judgment were impaired at least to some degree. This is relevant evidence for the jury to consider when it evaluates Trayvon Martin’s actions that night, and the jury should be allowed to give it whatever weight it believes it should.

What makes Zimmerman and West authorities on drugs? It’s a complete joke! I’m trying to be fair and impartial, but I find this to be totally disgusting and disrespectful. 

Attempting to turn pot into a viable part of Zimmerman’s defense does make me wonder about something. Have O’Mara and West ever smoked the stuff? I mean, both are around my age. A few years younger, actually, but they most certainly grew up during the Hippie pot smoking era of the 60s and early 70s. They were young once, like me. I went to college. To say pot wasn’t on any college or university campus (including theirs) is a huge lie. Did Mark O’Mara and Don West smoke pot? Did it make them feel violent? I want answers. I want the truth. At the same time, West’s reply to the State’s motion is a paradox. If he never smoked pot, he might be inclined to believe it brings on violence. Smoke that war pipe. Yet, on the flip side — and in my opinion — West could have been as high as a kite when he wrote his reply. You can act pretty silly if you smoke too much weed, you know.

Some of you may argue that O’Mara and West are not on trial here. I have no right to ask a question like that. You’re right. But Trayvon Martin is not on trial, either. Obviously, Zimmerman’s defense disagrees and I understand the tact it is taking. They have every legal right to try it, too. I thoroughly disagree, though, and I think any jury would see right through this ploy if it’s allowed to be introduced at trial.

According to the defense team’s “disjointed” argument, I could, quite possibly, deserve to die, just like Trayvon. Zimmerman and West are self-trained to sniff out evil pot users and both have built in “high” detectors. The reply document says so. Yup, and pot smokers are violent offenders, but only in Trayvon’s case. 

More to come…

Also posted on the Daily Kos. Please feel free to comment there. 

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The Beat Goes On

When I wrote about the Casey Anthony case — All Those Years Ago, to paraphrase the late, great George Harrison — I said I thought she was a good looking girl. Of course, this was early into it, when it was all the rage to call her the ugliest woman on the planet. I said that, had I met her in a bar, prior to her daughter dying and, of course, me being in my late twenties, which I was not; I probably would have hit on her. All hypothetical. Some of my readers left me in disgust. Sometimes, honesty is not the best policy, but only in the sense that I never should have mentioned it. I was simply trying to say that you can’t judge a book by its cover. Backfire! Heck, they all knew I was in my fifties!

A television cameraman I have gotten to be friends with recently told me that his son did, in fact, meet Casey in a bar a year before anything took place, and he did hit on her. How can one look into another’s eyes and see the future? You can’t, but upon talking to her, he ultimately found her to be quite strange and chose to move on. There were plenty of other good looking girls hanging around that night and he was on the prowl. While you may think I am trying to make a point about good looking girls and book covers, I am not. It’s all about putting too much weight on how someone looks. Weight is the common thread between Casey and George Zimmerman. While she was cute and petite, he is not. He keeps growing, and I hope that is not a detriment during the trial. While texting my closest connection yesterday, I made the observation that he looked like a big ol’ toad sitting on a log. 

I didn’t mean it as a direct insult; let me assure you of that. But he does seem dazed, like he’s on tranquilizers or something, and I wonder if he will snap out of it by the time the trial starts. I don’t care if he weighs 300 pounds, so let me make that clear; however, is he content or overwhelmed by it all? Whatever, he seems indifferent and complacent, and that’s not a good thing for the defense in my humble opinion.

§

I had to be outside the courtroom door by 8:00 am in order to pick a seat. We were selected by lottery and I came up number 14 out of 24 media organizations. I chose my place and that’s where I’ll be for the duration; meaning all future hearings and the entire trial, sitting in the same spot. After the selection process ended, I saw Robert Zimmerman and we exchanged greetings. Just before the hearing began, I had a chance to talk to Frank Taaffe, too. We have gotten to be friends. Let me just say that I’ve dated women who were more liberal than me, and I’ve dated women who were more conservative than me. That’s very true of my friends, too. What difference does it make when it comes to friends and lovers? That’s something I hold close to the vest. Fairness to all. Everyone has an opinion, and all are welcome in my mind.

Judge Nelson likes to get right down to business. There had been a lot of sniping going on between the prosecution and defense the past month or so, and she made it quite clear that she wouldn’t tolerate it. At 8:58 am. She didn’t wait until 9:00, in other words. Both sides were getting nasty and acting like school children; like siblings fighting for attention from their parents. Over a toy. WAH! WAH! To those who think the prosecution is right, and to those who think O’Mara is a saint, the judge doesn’t share your opinions, and that’s what counts in this case. Her job is to maintain peace and to interpret law as both sides present it, and that’s the way it went in the courtroom on April 30, 2013, Common Era or Anno Domini, depending on your beliefs.

Over a half-dozen motions were heard. While some may view the hearing as a victory for the State, I didn’t see it that way. In other words, it wasn’t that clear-cut. Defense Attorney Don West wanted assurances that the State would turn over all cell phone records it has in its possession. The judge agreed and ordered it done. Prosecutor Bernie de la Rionda did say it had nothing new to add; that everything was turned over. The defense also wanted any 911 tapes that may have been enhanced by Benjamin Crump, one of the attorneys for Trayvon’s parents. Initially, Trayvon’s father, Tracy Martin, told Sanford police detectives that the screams for help were not his son’s. Later, he changed his mind. The judge had already ruled that Crump cannot be deposed because of his status as the family attorney. “Your Honor,” de la Rionda stated, “I am not Ben Crump.” The judge ruled that any enhanced tapes must be turned over to the Defense in 24 hours, but only if they are in the State’s possession.

April 17 was the Court’s deadline for adding any witnesses, but Nelson granted the Defense request to add five new ones, only named A, B, C, D & E. The State did not object, as long as it is given the same opportunity.

Turning the wheel, Judge Nelson ordered the redaction of personal information mistakenly released by the Defense, and closed the door on publicly announcing the amount of the lawsuit settlement between the Martin family and the Retreat at Twin Lakes, where Trayvon was shot and killed. It will remain under seal unless it becomes an issue at trial. I will delve more into this subject in a later article, but suffice it to say the Defense argued that it could potentially show prejudice from the Martin family in trial testimony and the State disagreed. What relevance would it have after the fact? Trayvon was dead long before his family sued.

§

Two other issues arose that were quite newsworthy. One, of course, was Zimmerman’s swearing in by the judge in order to question his understanding of O’Mara’s decision to not seek an immunity hearing before the trial. The judge had set aside the final two weeks of April (4/22 and 4/29) to hold an immunity hearing. O’Mara told the judge at the last hearing on March 5 that it would not be necessary; that it could take place during the trial, not outside of it. Judge Nelson needed to hear it from his client because a motion was filed by de la Rionda requesting that Zimmerman make it clear himself. [See: STATE’S MOTION REQUESTING COURT INQUIRY OF DEFENDANT REGARDING DEFENSE COUNSEL’S WAIVER OF ANY PROCEEDING TO INVOKE IMMUNITY (SELF-DEFENSE/STAND YOUR GROUND HEARING) UNDER F.S. 776.032]

In the State’s motion, de la Rionda noted that the defendant was not present at the March 5 hearing when his attorney waived the immunity hearing.

Failing to ensure that the Defendant has knowingly waived this statutory right has the potential to result in Defendant after being found guilty attempting to invoke such an issue in any post conviction proceeding.

The State formally requested that the Court conduct a full inquiry of the defendant. Ask him if he is aware of this. The judge obliged over concerted protests from O’Mara, who wanted it to be in the form of an affidavit. George personally waived his right, but it can still be brought up during the trial, as O’Mara has said for some time. Significantly, it could potentially mean that the Defense can move to drop the charge after the State rests, if it feels it’s a proper time to invoke immunity. More than likely, it would happen after both sides rest, but, if, and/or, when it does, it would be up to the judge to render a decision. If the judge denies it, the jury would decide on a verdict; however, the Defense also risks one important thing — that the judge turned down the immunity request for some reason. Would that impact or influence the panel of six jurors?

O’Mara did make one thing clear about that, though, regarding the judge. “We’d much rather have the jury address the issue of criminal liability or lack thereof,” so it may never go to the judge.

§

O’Mara brought up the blistering attack by de la Rionda in his response to sanctions requested by the Defense against the State for discovery violations, particularly from Witness 8, who lied about her age and a trip to the hospital she didn’t take. She used the excuse as an explanation for not attending Trayvon’s funeral; that she was too sick. The Defense contends it spent over $4,000 investigating and finding the truth — something the State was well aware of since last August and withheld.

O’Mara told the judge that de la Rionda’s response was unethical, inappropriate and scurrilous. He said it was a horrific personal attack that should be stricken from the record. Judge Nelson gave O’Mara five days to come up with a list of what he wants redacted. While not coming out and agreeing to do that, she did say she found things the court wishes were not in the State’s response.

While pleading his case, O’Mara put West on the stand. He reiterated the claims made by the Defense that Witness 8’s age was first reported by Crump to be 16 when, in reality, she was 18. He also spoke about the the hospital trip she never took.

When de la Rionda cross-examined West, he reminded him that the Defense had plenty of opportunity to interview Witness 8 long before the State did. He also said he could request sanctions against them, too, for violations, because they had caused undue delays. I don’t really see it that way. The defense has not caused any delays that I am aware of, but in the end, the judge did not see any violations from the State, either. “The court does not make a finding that there was a discovery violation.”

The judge did leave the door open. After denying O’Mara’s claim that he spent “hours and hours of work” investigating discovery not disclosed by the State, which de la Rionda vehemently denied and claimed was inadvertent, she said she had no problem holding a hearing after the trial to determine whether the State should have to pay the Defense for some of the costs incurred. In my opinion, the Defense may have a good claim.

§

The hearing lasted about three hours and ended around noon. As I left the courtroom, rode down the elevator, and entered the main lobby, Robert Zimmerman was sitting in a chair. I walked toward him, stopped, and we talked. He is a soft-spoken, gentle man. I asked him if he knew who I was. He did. I didn’t ask for egotistical reasons. I realized he must have known about my position in the case. After all, I still firmly believe his brother would never have exited his vehicle without a gun, and he did so despite it being the job of experienced law enforcement personnel.

While I have maintained an excellent rapport with Benjamin Crump and Natalie Jackson since the beginning of the case, I haven’t had much of an opportunity to speak with the other side, except for Frank Taaffe, who is really an independent person in all of this. Robert will always defend his family, no matter what. I understand that as surely as I understand Lee Anthony defending his sister. I told Robert that I would be fair in this case from now on. I said I would not take sides in reporting about the trial. I will tell it like I see it, but I will make no remarks about guilt or innocence. Why? This is my last hurrah. After the Anthony trial ended, people left me in droves. There were other trials and scandals to follow. Yes, some people remained and still do, but it’s the cases readers are interested in, wherever they occur. Yes, they like my take on crimes, but in the end, it’s the crime that matters. When this trial is over, what will happen? I am not the late Dominick Dunne. I cannot travel across the country writing about case after case, nor would I want to. After this, I am free to go; free to do whatever I want. My door will open. I will be able to write as I please and hope readers continue spying on me. I can move around. I can write music and kiss crime good bye…

Oh wait! One of my journalist friends just had to remind me that Casey’s civil trial will probably take place before the end of the year; the one filed by Zenaida Gonzalez. I guess that means I’ll have to wait to retire my crime writing laptop. Darn, I hope you don’t mind.

The Creature Stirs...

I have been conspicuously absent and completely inattentive for the past two months. There were several very personal issues that arose and one, in particular, was explained on my Facebook page. I won’t go into any details here for obvious reasons. This is not a place to offer extraneous information regarding such issues, but suffice it to say, I am once again sticking my head out of the rabid hole and seeing the light of day.

There was something else quite pressing during the past two months that I would like to share. I decided to take an online songwriting course at the prestigious Berklee College of Music located in Boston. What happened there last week was a real tragedy, and my heart goes out to everyone.

Anyway, I was a graphic artist for many years when I decided I was getting a bit old. I always had dreams of becoming a writer, so I decided to make a move in that direction. I mean, think about it… If you were an ad agency art director, would you be inclined to hire a 25-year-old with fresh ideas or a 50-something getting paid a higher salary? I realized my glory days were behind me and I wanted to write, so I switched gears. 

I think most of you are aware of what I’ve done as a writer or you wouldn’t be here. I’m certainly not bragging, but one thing I’ve always told aspiring artists is that you’ve got to think you’re great at what you do or you wouldn’t be very good at it. This rings true in every profession. A car mechanic is someone you have confidence in; just as much as a brain surgeon. Who wants mediocrity?

I went from being a graphic artist to writing and making a name for myself. There is one final frontier for me and it’s a natural progression because I love new challenges. I will never get old of that, and as a creative person, why not try songwriting? Yes, I’ve dreamed of doing that, too; figuratively and realistically. I used to wake up in the middle of the night with original songs in my head. Within seconds, they were gone. Now, with an iPad purposely nearby, I can record the gist of them on a piano App with one finger for future reference — to work into complete songs, hopefully. Well, I’ve written two already, and I will share a link to one of them. Two links, actually. One is on SoundCloud and the other is on YouTube.

Please keep in mind, this is a SONGWRITING COURSE, not a SONG-SINGING COURSE. Therefore, you will have to put up with my voice, sadly. My grade IS NOT based on singing. None, whatsoever, so don’t even consider it. Don’t comment on it, either, inless you want to tell me I’ll never replace Joe Cocker. I’m mostly interested in the music and lyrics.

60 Second Friend

Please don’t read too much into the lyrics. It’s just a fictional song — not retribution or anything.

and

——-

Now, to completely switch topics without a proper segue, I have other news of importance. I was granted media credentials by the Seminole County Courthouse. That means I will sit in the courtroom during the entire George Zimmerman trial as a journalist. For those of you who followed me during the Casey Anthony case and subsequent trial, you know I wrote for a magazine. I learned a lot from that experience. This time, I want to do it on my own. I do not want to have to answer to an editor. I will write what I want and from the hip. Take it or leave it. Because of the hours involved — sitting in the courtroom only to come home to write — I will not have much time to respond to comments, but you will be free to discuss the case among yourselves. My intent is to not try to steal anyone’s thunder, but to complement other blogs and forums. Take my observations for what they’re worth and use them any way you see fit.

I have one other obligation with my Berklee course, and that is to critique the songs of other students. That will be my final assignment and by week’s end, I will be freed up. It means I will be able to, once again, write about the George Zimmerman/Trayvon Martin case. I may have lost some readers and I may be a bit rusty, but I will plug along anyway. Thank you for hanging in there. This was an extremely difficult course and I had to give it my best shot. I’m sorry I neglected my blog, but I had to focus on it as best I could. (By the way, I am also taking piano lessons, which will be followed by guitar lessons. If I plan on writing music, I need to feel it and play it.)

The Retreat at Twin Lakes on February 26, 2013 from 7:00-7:30pm

This isn’t my best uploaded footage. It was quite dark, which is too bad, because I don’t have a professional video camera, film equipment or lighting. I may try this again with a different camera, but I think you will understand my point. It was a hunting trip in my opinion.

The Curious Case of Benjamin Crump

Natalie Jackson, Dave Knechel and Benjamin Crump

The maelstrom that’s surrounded George Zimmerman since February 26 of last year reached a crescendo in the courtroom last week. Sort of. Then it waned. That his defense team has worked hard for him is something worthy of recognition, but little has been achieved during the course of the O’Mara reign — not that I’m doubting the defense team’s crowning victories; removing two judges from the bench.

What’s so interesting about the hearing to compel Benjamin Crump to be deposed (MOTION REGARDING DEPOSITION OF BENJAMIN CRUMP, ESQUIRE) is not so much that it was a loss to Zimmerman’s attorney, Donald West, who argued for it; it was that, even with a grant by the judge, what would have been gained? What would Crump have to offer other than opinion laced with innuendo?

In his response affidavit, Crump stated that he telephonically interviewed Witness 8, but before making the statement, he laid a foundation explaining what brought the interview about. For anyone to believe that he did so for the prosecution’s sake would be a fool. He did so at the behest of Trayvon Martin’s parents — for future civil litigation against the defendant. It is the interests of his clients that he considers. Yes, this includes some semblance of justice, but, to be specific, he was under no legal obligation to make the interview public, nor was he bound by law to turn it over to the prosecution or defense. Certainly, he was right when he did so. 

6. On or about February 28, 2012, after local authorities refused to arrest Defendant, my law firm and I were engaged by Trayvon’s parents to, inter alia [Latin for “among other things.”], zealously pursue, defend and protect their rights as the next of kin of a homicide victim, as well as any wrongful death and other civil claims that they or Trayvon’s estate may have — including, but not limited to, statutory, common law and constitutional claims against Defendant and others arising out of or related to Trayvon’s tragic death, access to public records, and the criminal prosecution of Defendant (collectively, the “Litigation”).

In essence, this means Trayvon’s parents have every right to legally pursue in civil court the person who admitted to shooting and killing their son. Whether this was murder or self-defense will be decided in criminal court.

7. The broad scope of my engagement in regard to the Litigation has remained the same at all times material to the instant case and, since February 2012, my reputation has been continuous and remains ongoing. From the outset through the present, I have gathered factual information and performed legal research from which I have formed — and continue to form — my own legal opinions, conclusions, mental impressions and theories of liability in regard to the Litigation.

There it is, in stark black and white — OPINIONS! As noted by Bernie de la Rionda at the hearing on February 22, there was never anything substantially factual to be gained by deposing Crump and Judge Nelson soundly agreed. She continued to badger the defense, West, in particular, about relevance. To what purpose would it serve?

In my opinion, the judge took Crump’s affidavit at face value. She believed him. (It’s also interesting to note that West rebuked Crump’s title of Esquire in open court, yet used it in the title of his deposition motion.) She reminded the defense that, while Crump did interview Witness 8, he was not present at the shooting. He wasn’t listening in on the phone call between Trayvon or Witness 8, either.

In her order, Judge Nelson cited several cases supporting her decision. I believe this is to back her up later on if there is an appeal.

One of the problems West brought up about Witness 8 was the way Crump described her age. Was she 16 or 17 at the time of the recording? While I agree with the defense on this one, I side more with the judge. She scolded West and O’Mara by telling them they’ve had 10 months to depose that witness. Why haven’t they done so? You see, and this is my thought, why put the cart before the horse? Why not ask the witness first? Then, if you have questions, file a motion to depose Crump. Now, it’s too late. The defense lost this round.

But did they lose? Not really. While I understand the motion, I saw nothing to be gained had they won; nothing at all. The relevancy precluded it. Crump never had much more to offer than opinion, and there still remains that strong element called attorney/client privilege. And neither side would dare put him on the witness list.

§

Along similar lines, tomorrow will mark the one-year anniversary of Trayvon’s untimely death. Battle lines are drawn, although there are no real fights in the physical sense. We’ve got www extremists on both sides that believe they are the one true authority. Well, that’s simply not true. The court is the only one that counts. Period. The rest is pure conjecture.

Zimmerman’s supporters believe Tracy Martin verbatim when he was questioned about the horrible cries for help heard on at least one of the 9-1-1 tapes. No, he initially said, that’s not Trayvon; however, he was under duress at the time, having just lost his son. Later, he rescinded that statement. What matters is what he will say on the stand, under oath, not what Internet people opine online. 

What no one seems to relate to is that fathers have no intuitive instincts compared to mothers. What, you say? What is it about mothers waking up in the middle of the night before their babies start to whimper, let alone cry, yet fathers sleep right through it? Trayvon’s mother immediately recognized her son’s voice in those calls, so why isn’t that an important piece of the puzzle to Zimmerman loyalists? When Trayvon was growing up, did Tracy hear the cries of his son like Sybrina, who mended his cuts and bruises; who rocked him in her arms? 

This is my point completely. Simply said, it’s wrong to make any assumption based on nothing more than presumption. Who knows for a fact right now whose voice screamed out in the dead of night clouded by light rain? The witnesses that spoke first and later changed their minds? George certainly knows. Sybrina, too, in her mind, and she will say so when it matters most — in the courtroom.

Why is it that the fans of Zimmerman question where Trayvon was “lying in lurk” when he had plenty of time to run home, yet couldn’t care less that George had nearly a minute to get back to his truck after crossing the “T” on the rebound where he claimed he was attacked? What was he really doing? He was still on the phone with dispatch!

You see, it’s not my point to prove what happened that night because I can’t, although I have walked the walk inside the Retreat at Twin Lakes and recorded it on video. I see what adds up and what doesn’t. Because of this, I think it was totally wrong for the defense to seriously consider that Crump could have offered anything more than his opinion on the homicide. Other than Zimmerman, the next best thing has been Witness 8. All along.

Pay attention to 4:56 in on the following video, NEN Call and Trayvon’s Walk. It documents the time based on statements given to the Sanford Police Department by George Zimmerman.

Dave at the Board

In August of 1981, I embarked on a new career as a hard line artist for the Stonebrook Advertising Agency in Orlando, Florida. No more slinging hot dogs and hamburgers! By hard line, it meant that I drew items like shoes, appliances and furniture. That sort of stuff. I also designed ad layouts for newspapers throughout the state, but I was never a fashion artist. No flare for that. 

Artist renderings eventually went by the wayside. By 1990, I was sitting in front of a new Mac computer, still designing ads, but also directing photo shoots that included live models.

This is a portrait of me done by fellow artist, Mary McNamara. She sat directly across from me when we still worked at our art boards. To say this was a surprise was an understatement. I had no idea until she presented it to me one afternoon, and it was quite a gift! I believe Mary is gone now, but the picture will forever be a fond memory of her — and how I looked at the time.

The medium was watercolor and it was painted on January 25, 1985. I’ve kept it protected all these years, but it has yellowed with age. 

Click image to enlarge

Marinade King

I know I haven’t been active on my blog lately and I don’t know if I can explain why. I guess there’s been a few reasons — good and bad. I will emerge from this funk and pick up the pace. Meanwhile…

I imagine some of you have wondered where the “marinade” part came from in my online name.

The following is a photo that ran in The Orlando Sentinel, along with a nice story, way back in April of 1994. It was three months after I started making and selling Marinade King, based on my very own recipe. It didn’t take long until some of my friends started calling me Marinade Dave. The name stuck.

One day, I’m going to make a great big batch of it. Soon, I hope…

Click image to enlarge 

Out of Order

“I don’t see any of your issues as insurmountable.”

- Seminole County Circuit Court Judge Debra Nelson, in denying a continuance motion filed by Zimmerman’s lawyer, Mark O’Mara.

I believe George Zimmerman’s defense is so busy prepping for the immunity hearing set for late April, that it’s one of the most important reasons why O’Mara filed the DEFENDANT’S MOTION TO CONTINUE. Plus, time needed to sweeten the pot, of course. Granted, mounting a proper defense takes time, but O’Mara has been quick to point out that his client is so innocent, it’s blatantly obvious. SLAM DUNK! If anything, he should be in a hurry to end the nightmare he’s so sure his client is innocent of; and he’s said so on numerous occasions. I mean, why worry?

“I will call my wife as an expert witness that I want this case tried in June.”

- Mark O’Mara, at the hearing on February 5

The motion filed on January 30, sans photographic and assorted correspondence evidence, is fifteen pages long. Someone spent a lot of time putting it together, yet it was fatally flawed right from the start. If you read (5) on page one, O’Mara acknowledges:

“While it should be noted that the State Attorney’s Office has assisted the defense by organizing and presenting State witnesses for deposition without need for subpoena, there have been other problems and/or delays with discovery.”

Yet, on page three (7), the motion states: 

“Again, while the State is within its right, under the letter of the rule, to demand […] formalities, that has cost hundreds of hours of additional time to be expended, which has delayed work and progress on other substantive matters.”

This is not quite the truth. The Defense spent many hours sweeping Judge Lester out the door. (See: WRIT OF PROHIBITION.) I am convinced the judge gave George Zimmerman a reprimand he most certainly deserved when his wife lied in open court and he kept his mouth shut. I also think Lester would have moved on from that point and been as fair as possible. It was simply a scolding — holding no further grudge. Regardless, the bottom line is that it was purely something the Defendant created and the State should not be blamed for this loss of precious time. Period. That’s what the continuance motion was all about; not enough time, yet it never once mentioned the time it took to file the writ, then the appeal and, finally, to win the appeal that ordered Lester’s removal from the case. Which leads to…

“The State can’t control the methodology the [defense] uses.”

- Bernie de la Rionda, at the hearing, on how the defense schedules its subpoenas

In the State’s rebuttal motion, STATE’S RESPONSE TO DEFENDANT’S MOTION TO CONTINUE, Bernie de la Rionda let the Court know the Defense motion for a continuance was very one-sided and that he has complied with discovery rules. This is more about depositions:

“And while many depositions have been taken, in some cases it was only after the State repeatedly asked that depositions be set. There have been too many delays in getting Defense Counsel to schedule depositions, on at least four occasions depositions were scheduled (entire days were set aside), only to be informed by Defense Counsel the depositions were cancelled. The State has expressed its frustration with this process.”

Also written in the response was that, originally, both sides had agreed to set aside the entire week of January 28 for depositions, but as the week neared and nothing surfaced, the Defense informed the State that only two days would be allocated for depositions. Later, the State was informed that none would take place because the Defense was focusing on the preparation of the continuance motion during that week. This is all documented, too.

Of course, it almost goes without saying that Bernie de la Rionda formally objected to Mark O’Mara’s statement about the State’s formalities: 

“The State has previously attempted to inform Defense Counsel of certain information during ‘informal discovery’ only to have the statements taken out of context and/or misstated in motions and arguments.”

De la Rionda wrote that the State will continue to comply with the Florida Rules of Criminal Procedure, but will not provide them with a roadmap of what the evidence shows, nor will it connect the dots before depositions are taken. He also noted that the Defense complained about having to spend a great deal of time “reviewing and dealing with all the information ‘which has flowed through various social media sites, blogs, media outlets, and other vehicles’” without mentioning that Zimmerman and O’Mara created their own sites and continue to spend hours sorting through bits and pieces information. We need only look at the Sean Hannity interview for what makes this an example of hypocrisy in action.

One of the things that’s irked me for some time is the Defense’s propensity to blame the media for all of the information that’s out there for the public to pick through, yet it is responsible for a great deal of it. That’s the pot calling the kettle black, as far as I’m concerned. We live in a different world, too, and it’s now quite apparent that all of the negative publicity spewed during the nearly three years of the Casey Anthony case, from July 2008 to the onset of the trial in May 2011, did nothing to harm her in court. In this case, if anything, Zimmerman’s Defense has been doing a great job handling public relations. They should be counting their blessings, in other words.

This is no dress rehearsal; nor is it the first time O’Mara has been involved in a complex case, so he understands the mechanisms completely. At a hearing on October 26, Judge Nelson addressed the date of trial and set it for June 10. Three days later, she issued a scheduling order, the AMENDED SCHEDULING ORDER AND ADMINISTRATIVE PROCEDURES TO BE FOLLOWED BEFORE TRIAL (amended to correct year of trial date). In it, she wrote:

It is hereby ORDERED:

1.  Trial is presently set to begin on June 10, 2013.

a.  Any Self-defense Immunity / Stand Your Ground motion shall be filed and heard on or before April 26, 2013, which is 45 days before trial.

b.  Final witness lists, including any expected expert witnesses, shall be exchanged on or before March 27, 2013, which is 75 days before trial.

c.  Any other pre-trial motions shall be filed and heard or [sic] before May 10, 2013, which is 31 days prior to trial.

d.  Certain short-matter motions addressing purely legal matters may be heard on or before May 31, 2013, which is 10 days prior to trial.

e.  No continuances [emphasis mine] of the trial will be granted on the basis that the parties have not complied with these deadlines.

There it is, folks, in simple black & white. No continuances; none simply granted, anyway, and Mark O’Mara should have expected the outcome going into Tuesday’s hearing. Shades of Judge Belvin Perry, Jr., who is also a stickler for dates and times. It should also be mentioned that, before her quick ruling, Nelson noted that she had two dates set aside for hearings to deal with discovery and other issues, but neither side took real advantage of them, not that the State seems to need them. That could have, quite possibly, hindered the Defense by not keeping the Court apprised of their situation throughout.

Oh well, it didn’t hurt to try on Tuesday but, times-a-wastin’ and there’s an immunity hearing to prep for… 

Also see Daily Kos

WAKE UP WHITE PEOPLE!

Get over it. He is not going to take your guns away!

Although there is a history of mall and theater shootings in this country, Sandy Hook Elementary School was the straw that broke the camel’s back. So many innocent children died. The smallest thing to come out of federal legislation will most likely be mandatory background checks prior to purchasing any guns. Personally, I’m all for it because this country is overflowing with kooks and gun nuts. No matter how much the NRA and other gun rights advocates protest, something must be done. For instance, during one of the more recent break-ins at the Retreat at Twin Lakes, a 9mm pistol was stolen from the residence, not just a television. Why shouldn’t homeowners lock up their guns before leaving the house each day? What’s wrong with a law like that? Why leave them in a drawer in the nightstand; the first place a robber would look? Would you leave your knives out for your grandchildren to play with? Of course not. That gun is now a Saturday night special and it didn’t have to be that way. Before anyone calls me a bleeding heart liberal for thinking this way, which is really nothing more than common sense, consider the following.

A month ago, on January 6, a decorated combat veteran was driving through Jefferson County, NY, when he was stopped for a random vehicle check by a deputy sheriff. Staff Sgt. Nathan “Nate” Haddad had five 30-round assault rifle magazines in his possession. All were empty. He was arrested on the spot and charged with five felony counts.

According to his brother, Michael Haddad, those magazines were legally made before the New York (state) Assault Weapons Ban was enacted. If true, this was no criminal act. In the military, Haddad was trusted to handle weapons that far surpassed what he was carrying the night of his arrest, and now he finds himself facing a lengthy prison sentence. Oh, those liberal New Yorkers!

Haddad was recently honored by the Union League’s Armed Services Council and by the Philadelphia chapter of Blue Star Mothers for his work in assisting disabled veterans get back on their feet. (If you are so inclined, you may contribute to his defense fund HERE.) 

My point is not to preach about gun laws or what’s right and what’s wrong; it’s all about Nathan Haddad and Sandy Hook and how, somewhere, George Zimmerman falls between the two. Huh, you may ask?

Yes, the Second Amendment guarantees the right to bear arms, so that’s not an issue at all. The problem is, who should be able to handle guns? Haddad? Adam Lanza, the Sandy Hook murderer? George Zimmerman?

What I find ironic about the shooting of Trayvon Martin is how justified so many people think Zimmerman was based on his Second Amendment rights. Considering that logic, so was Adam Lanza — not that I’m attempting to put the two of them on a level playing field, but death by gun is still death by gun and, generally speaking, the court system decides how to handle those deaths, not us. Had Lanza’s mother locked up her legally obtained guns when not in use, would children have died that day? And don’t tell me anyone is going to keep an assault rifle in a nightstand. He couldn’t have shot up a school with a lone pistol; all she needed to feel safe at night.

§

To put things in a more proper perspective, let’s look at exactly who we’re talking about in this particular case. George Zimmerman is so proud of his Hispanic heritage, he made it clear very early on that he is not a White person. He doesn’t associate his background with them despite his father being Caucasian. He considers himself, as an ethnic Hispanic/Latino, to be other than White, and that places him closer to Trayvon Martin than most of his White supporters would like to think, let alone believe that he is. (Quickly, look the other way!) Wasn’t his great-grandfather Afro-Peruvian? Granted, he may have said so to prove how diverse he is; that he is not a racist by any means. Or he could have said it to save his butt from a federal hate-crime charge. That means he’s either telling the truth or he’s lying. Take your pick.

Whichever one you choose, the fact remains that Zimmerman is not White, yet it’s the race that has aligned itself with him throughout this ordeal. Why? Because he’s laughing all the way to the bank, in my opinion, after begging for funding. He’s milking the system. White milk, of course. Most certainly, he’s not getting a pittance from Black people, and I’ve spoken to many Hispanics that are ashamed of what he did. “He’s not one of us,” some admonish. In truth, many Hispanics don’t consider him to be a true Latino because only his mother is one. 

What’s left is White people supporting him because of gun rights and/or racism, and it makes no sense at all. Who knows anything about his past prior to the shooting last year? Anything at all, really? No one has a clear understanding about whether he did, in fact, molest his younger cousin for years. Right now, I’d be willing to give him the benefit of the doubt because nothing has been established, but what’s good for the goose is good for the gander. If Trayvon’s past is to be exploited, so must Zimmerman’s. What do we know about him as a teenager; I mean, really know about him? That he was lily white and pure as the driven snow?

This leads us to three perplexing scenarios for Zimmerman’s supporters. If they support him because of race — Trayvon being an inferior Negro and all — they’re barking up the wrong tree house but, in truth, Zimmerman ain’t truly White now, is he? (Not that it matters a hoot to me.) If it’s because of advocating gun rights only — the right to bear arms — his supporters should look Nathan Haddad’s way; not toward some lying cop wannabe who should have ceded to the right side of caution and let real cops handle the situation. In the real world, Haddad should be the hero to gun rights advocates, not Zimmerman. To those who support Zimmerman because of gun rights and racism, may God have mercy on their soul. Had Trayvon merely been white, they’d be spitting on Zimmerman right now instead of his victim’s grave.

§

Remember, I’m a White boy saying this. I grew up in New Jersey. I know a thing or two about the Mafia, and you can trust me on this one. But that doesn’t make me a mobster, even if I had an ounce of Italian blood in me. Trayvon grew up in Miami. He knew about gangs. Ergo, that didn’t make him a gang member. The kid had a heart sticker on his cell phone, for crying out loud. What sort of bad ass would do that? The Heart Killers? Oh no… that was Zimmerman, but speaking of gangs…

“They do a year and dont ever open thier mouth to get my ass pinched.”

We will never know what went through Trayvon’s mind that fateful night, but once again, what’s good for the goose should be good enough for the gander. He could have easily seen his eventual killer as a gangsta chasing him down, just like Zimmerman looked at him — a threat. Why not? He had every right to. Growing up in the ‘hood, he knew all about those types; White and Hispanic dudes acting Black. Yo Yo, Bro, Wazzup?

What’s up with that? And stop calling me Bro. You stalkin’ me. After all, Trayvon was raised to be very careful around not just Whites, but all light-skinned people. Every African-American kid is. They are out to get us. How else would you explain that, had Trayvon been White, a little pot wouldn’t matter? He would have been just like other boys his age; a rite of passage — part of growing up. Boys will be boys. Not Black boys, though. Black boys can’t smoke pot. If they do, they are bad asses. No in between. Only White people can stand their ground. And mostly White, ‘cept Mexicans.

“I dont miss driving around scared to hit mexicans walkin on the side of the street, soft ass wanna be thugs messin with peoples cars when they aint around (what are you provin, that you can dent a car when no ones watchin) dont make you a man in my book. Workin 96 hours to get a decent pay check, gettin knifes pulled on you by every mexican you run into!”

It’s abundantly clear that the above two statements were fairly prejudiced and/or somewhat gangsta-minded at the time they were written. As a matter of fact, I’d be inclined to call the person who wrote them a bit of a racist, wouldn’t you agree? But, then again, wasn’t Trayvon “messin’ with people’s houses” the night he was shot by looking toward their windows from the street where he walked? There is no proof he actually looked into any of them close up.

What’s most compelling about those statements is that they were made by Joe G., Zimmerman’s alter ego, on his Myspace page from not so long ago. How strange, coming from such a “national hero” to many adoring fans. Well, that was then, some may decry, but so is Trayvon’s past. In my opinion, there is a strong indication that when he stepped out of his vehicle with his 9mm gun on the night of February 26, 2012, George Zimmerman transformed himself into Joe G. and decided to stalk a soft-ass wanna be thug by the name of Trayvon Martin. In his mind, that’s exactly what the boy was; one of the “thugs on drugs” and up to no good. He didn’t dent up any cars along his way, though, nor did he pull a knife, but he still got dead.

Yup. All of his boys back home in Manassas — that D.C. ‘burb — would be proud of Joe G. someday. He was going to prove it, too. Where are his boys now? Coming out of the woodwork for him or still chasing Mexicans around for no good reason?

WAKE UP WHITE PEOPLE! Zimmerman’s no hero, no matter what any of you think. That Kel-Tec did him no good, and a real cop would have shot him dead that night had one showed up a minute or two earlier. Count on it, Homie.

Casey Anthony - A Gift That Keeps Giving

 Simon Barrett will return to the Internet airwaves today as he continues his ever popular blogtalkradio show. Today’s subject?

Casey Anthony - A Gift That Keeps Giving

1:00 PM EST

Join Simon, myself, and attorney Peter Haven, as we discuss Casey’s recent developments, including a Florida appeals court decision reducing her four misdemeanor convictions to two, plus her recent Chapter 7 bankruptcy filing. Haven represented Ron Goldman’s family during the OJ Simpson civil trial. Goldman, if you recall, was murdered along with Nicole Brown Simpson. Haven is also on the board of directors of the Ron Goldman Foundation for Justice, which helps victims of crimes.

Please Tune-In!

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To read Simon’s blog post, CLICK HERE

Casey Anthony: Not Very Appealing, Part 3

DOUBLE JEOPARDY

In POINT TWO of the appeal, Casey’s defense wrote that:

II. The Appellant’s constitutional rights were violated when she was convicted of four separate counts of providing false information to a law enforcement officer because each count stemmed from the same single offense where there was no break in the temporal aspect of the crime.

In that sense, if I fire a bullet through the brain of someone (who dies, obviously) and, as it passes through my intended victim, kills the person standing immediately behind him; does that constitute two homicides but one murder charge because it was one bullet? After all, it stemmed from the same single offense. That’s the logic of this Appellant’s argument. The defense also argued Fla. Const. Article 1 §9:

”[…] that individuals are given ‘protection from multiple convictions and punishments for the same offense arising out of a single episode.’”

I completely disagree. First, let’s look at the testimony by law enforcement at Casey’s murder trial acknowledged by her defense:

TRIAL TESTIMONY

Corporal Rendon Fletcher:

“Corporal Fletcher relayed that the Appellant, after questioning, stated that her daughter was missing, in the custody of a nanny, and that the Apppellant was conducting her own search.” LIE #1.

Lieutenant Reginald Hosey (then Sergeant) and Officer Adriana Acevedo:

”[…] Officer Acevedo escorted the Appellant to the last stated location of the ‘nanny.’” LIE #2.

Hosey: “[…] after being escorted to the Sawgrass Apartments, […] the Appellant was led back into her residence…” LIE #3. There was never a Zenaida Fernandez-Gonzalez living at Sawgrass, in Apt. #210 or anywhere else. She led Hosey on a wild goose chase.

Detective Yuri Melich:

“The recorded statement by the Appellant stated that she worked at Universal Studios, Zenaida Fernandez-Gonzales was Caylee Anthony’s babysitter, and that the Appellant informed Jeffery Hopkins and Juliette Lewis of the disappearance of her child.” LIE #4.

You cannot simply lie to every law enforcement officer that comes down the pike and consider it one big lie. It may have been one in Casey’s mind, but each lie to each officer is a separate offense.

On March 12, 2009, I addressed the fraud charges filed against Casey by her onetime friend, Amy Huizenga, on a post titled Double Jeopardy. Casey stole and cashed her checks while she was out of town. Thirteen third-degree felony charges were filed in all. She was convicted of six and Judge Stan Strickland withheld adjudication on seven.

This applies today because the defense tried to do the same thing then; to count the separate charges as one. They failed. On The Wisdom of Solomon, dated January 10, 2010 - three years ago! - I wrote:

Judge Strickland gave the defense an opportunity to challenge the charges. We can discuss the lack of brevity or the levity of the arguments, but let’s cut to the chase - it came down to the judge. First, it should be noted that Casey had no prior convictions and she did make full restitution and  Baez did bring up “equal justice” for his client. He asked for one year of probation and credit for time served, rather than the five years of incarceration the State sought. In the end, His Honor sentenced the 23-year-old Casey to (jail) time served - 412 days - plus $5,517.75 in investigative costs and $348 for court. The amount may be discussed and negotiated at a later motion hearing because the defense found the investigative charge too high and not justifiable. He also adjudicated Casey guilty on six of the fraud counts and withheld adjudication on seven, plus he tacked on a year of supervised probation, which could be problematic and complex later on, given that she still faces a huge mountain of charges ahead. He said that he had given this a lot of thought prior to sentencing.

“There was not an even number of offenses, so I withheld in seven, I adjudicated in six. If that seems Solomon-like, it is.

On each and every count, Casey must submit a DNA sample because she is now a convicted felon. There it is, the words everyone has been waiting for…convicted felon. Time to move on to the next chapter, but first, Casey apologized to Amy Huizenga.

“I’m sorry for what I did. I’d like to sincerely apologize to Amy. I wish I would have been a better friend.”

§

That same standard for double jeopardy applies today, as surely as the day I wrote it in the 2009 article based on those fraud charges:

In essence, Casey’s defense team points out that under law, she should be charged for one crime by one count. The defense also claims that charging her with multiple counts for the same act prejudices her, therefore the counts should be dismissed.

According to the motion, “Miss Anthony is guaranteed double jeopardy protection by the Fifth and Eighth Amendments to the United States Constitution and Article 1, Sections 9 and 17 of the Florida Constitution for duplicative charges.” Let’s take a look at what the law says:

I will leave the indentation out for now, but the following paragraphs are from my 2009 article:

Amendment 5 – Trial and Punishment, Compensation for Takings

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment 8

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Florida Constitution – Article 1, Sections 9 and 17

SECTION 9.  Due process.

No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.

SECTION 17.  Excessive punishments.

Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. The death penalty is an authorized punishment for capital crimes designated by the legislature. The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the legislature, and a change in any method of execution may be applied retroactively. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. This section shall apply retroactively.

The double jeopardy rule of the Fifth Amendment is intended to limit abuse by the government in repeated prosecution for the same offense as a means of harassment or oppression. It is also in agreement with the common law concept ofres judicata which prevents courts from relitigating issues which have already been the subject of a final judgment. There are three essential protections included in the double jeopardy principle, which are:

1. being retried for the same crime after an acquittal
2. retrial after a conviction
3. being punished multiple times for the same offense

Does the defense motion to dismiss those extra charges, something it sees as ancillary in nature, hold any merit? In Solem v. Helm (1983) 463 U.S. 277, a split court found that a life sentence without the possibility of parole for a seventh nonviolent felony was unconstitutional. In Solem, a bare majority of the court held a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including the gravity of the offense and the harshness of the penalty; the sentences imposed on other criminals in the same jurisdiction; and the sentences imposed for commission of the same crime in other jurisdictions.

In Harmelin v. Michigan (1991) 501 U.S. 957, a life sentence without possibility of parole for possessing 672 grams of cocaine was upheld. The case produced five separate opinions. While seven justices supported a proportionality review under the Eighth Amendment, only four favored application of all three factors cited in Solem. As one court has concluded, disproportionality survives; Solem does not. (McGruder v. Puckett (5th Cir.’92) 954 F.2d 313, 316.) In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, determined Solem was wrongly decided and the Eighth Amendment contained no proportionality guarantee. Justice Kennedy, joined by Justices O’Connor and Souter, found the Eighth Amendment encompassed a narrow proportionality principle. In other words, the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Moreover, in Solem v. Helm, the court focused on the nonviolent nature of both the defendant’s current offense of uttering a ‘no account’ check (one of the most passive felonies a person could commit) and his prior offenses. The majority acknowledged a life sentence for fourth-time heroin dealers and other violent criminals would pass constitutional muster.

While we ponder the legality of the double jeopardy clause in the appeal, allow me to look at the April 19, 1995 Oklahoma City bombing which killed 168 people and was the deadliest act of terrorism within the United States prior to the 9/11 attacks. I don’t need to go into any detail of what transpired. This is purely about the charges, the trial, and the conviction.

On August 10, 1995, Timothy McVeigh was indicted on 11 federal counts, including conspiracy to use a weapon of mass destruction, use of a weapon of mass destruction, destruction by explosives and 8 counts of first-degree murder. On June 2, 1997, McVeigh was found guilty on all 11 counts of the federal indictment. He was executed by lethal injection at 7:14 a.m. on June 11, 2001, at the U.S. Federal Penitentiary in Terre Haute, Indiana.

Despite killing 168 people, McVeigh was only charged with 8 murders. Casey was convicted of four misdemeanor counts of lying to law enforcement personnel. The convictions should stand. Double jeopardy, in this case, would mean reducing her convictions from four to one. No dice, I say! Why? If Timothy McVeigh’s attorneys used the same logic and prevailed in a similar motion to dismiss the counts by reducing the eight murder charges to one, that means out of 168 deaths he was responsible for, he would have been tried for one single murder and the entire weight of those deaths would have been reduced from 8 to 1. Would he have been sentenced to death for one murder? If so, would it have been appealed? Yes, and it would have carried much less weight. With Casey, it’s the same thing in my book, although the charges are not similar. I am merely making an analogy.

Ultimately, double jeopardy should not be an appeal issue as far as I’m concerned. Casey was convicted, sentenced, and she did her time on all four counts. That cannot be taken away from her. In the end, it will hinge on whether she was in police custody when she was questioned.  Was she free to go and was she Mirandized? Should she have been? By her own admission, she spoke freely. Should she have been Mirandized just because she decided to sing like a bird? Not until she was placed in custody, meaning under arrest or when her freedom was greatly deprived; enough to be equal to an arrest. Custody could be interpreted as being handcuffed and placed in the back of a police car. It could also include her interrogation — an attempt to elicit incriminating statements — but to what extent? Who said she was a suspect at the time?

I believe the appellate judges will rule against her. Those misdemeanor convictions will stand by a vote of 2-1. No matter what the outcome is, she’s still — and shall always remain — a convicted felon. Thank you, Amy Huizenga.

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