Powered by TypePad

« Saturday Morning Open Thread | Main | The Zimmerman Arrest Affidavit - Hold The Cheers »

April 14, 2012

Comments

AliceH

thanks, mockmook. I often think I've said something hilarious, but evidence suggests I'm often wrong.

MJW

Also AliceH, I assume you wouldn't shoot anyone without a darned good reason. (When I first responded, I didn't notice your name was the same as my hypothetical witness.)

MJW

Hey, I wrote my last comment before I even saw the replies pointing out my obliviousness.

Mark Folkestad

Several have been talking about the future bullseye on Zimmerman's back. Heck, once I complete my move to Alaska, he can take shelter on my property. Any "gangstas" would stick out like sore thumbs, and I'd hear about their arrival in plenty of time to have a special welcoming party ready. I can just see some inner city "yutes" trying out "drive-by kayaking".

Shecky

Z walks in to a cafe with a Duck on his head and Alice the waitress says "why did you bring that white hispanic in here?" Z says, "no, it's a Duck" Alice says "I was talking to the Duck"

jimmyk

I'm not sure I agree that Martin's violent activities, assuming there were any, wouldn't be admissible. If Martin were on trial, they almost certainly wouldn't be, but he's not.

MJW: What if the prosecution tries to paint Martin as a saintly innocent? Wouldn't that make his past open to scrutiny? They may realize this and try not to, but it will be hard for them to avoid the argument that GZ's suspicion was solely based on Martin's race, that he was just a sweet kid who made a run to the store for skittles and iced tea. Once they do that, I would think a judge would allow the defense to bring those things in.

Gus

Mark F ,you just profiled GANGASTA'S.

You are of DEPRAVED mind according to our LIBTARD friends.

MJW

jimmyk, I believe you may misconstrue my point. I think any evidence of Martin's criminal or violent nature is admissible. Here is the applicable rule in Florida:

90.404 Character evidence; when admissible.

(1) CHARACTER EVIDENCE GENERALLY.--Evidence of a person's character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:

* * *

(b) Character of victim.--

1. Except as provided in s. 794.022, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; or

2. Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.

So provision 1. allows the accused to introduce evidence of the victim's character, provided it is pertinent. Evidence that Martin engaged in burglary or was violent is clearly pertinent to Zimmerman's defense.

(794.022 protects victims' rights in sex crimes.)

BlahBlahBlah

"it will be hard for them to avoid the argument that GZ's suspicion was solely based on Martin's race, that he was just a sweet kid who made a run to the store for skittles and iced tea."

I dont see how they would need to paint Trayvon as a sweet innocent kid to prove Zimmerman profiled (but they wont argue racist as Zimmerman didn't even know Martin was black until later in the call)

Zimmerman would have no prior knowledge of Martin seeing as he had no idea who he was following. Martin could have been the DC Sniper and it would have no barring on the case.


What they are almost certainly going to argue is Zimmerman was a paranoid, over-zealous "watchman" whose eagerness to "stalk" anyone he didn't recognize led to Martin acting in self-defense.

Had Zimmerman not (against the will of the dispatcher) obsessively followed, with Gun at hand, a person who was merely walking home through the neighborhood, and had instead waited for the Police, then Martin would not have defended himself and in turn would be alive today. (which is where their Malicious Disregard part comes in, to meet the 2nd Degree standard)

Its pretty weak, but that's what they are going to do.

BlahBlahBlah

"Evidence that Martin engaged in burglary or was violent is clearly pertinent to Zimmerman's defense."

I'm not sure how that would be relevant seeing as Zimmerman would have no way of knowing if Martin was in fact a criminal.

What might be admissible is any evidence of Martin attacking people when he perceived himself to be slighted in any way. Like if there is evidence of him swinging at the bus driver; that could be something the Defense might be able to use.

We are dealing with a minor too, so it possibly gets even more questionable though.

MJW

I'm not sure how that would be relevant seeing as Zimmerman would have no way of knowing if Martin was in fact a criminal.

Unless Martin looked suspicious to Zimmerman because he was currently engaged in suspicious activities.

BlahBlahBlah

"Unless Martin looked suspicious to Zimmerman because he was currently engaged in suspicious activities."

Yes, that is very true. And Zimmerman did say Martin was looking into neighbors windows, so...

But I still imagine there would have to be some form of proof Martin was actually in the act of burglary for such prior evidence to be brought up. I could be wrong, but I don't think I am.

(judges, can we get a ruling on admissibility?)

Beasts of England

Ignatz@5:35 - Too many years of Latin often renders my syntax Yoda-ish.

(Female, indeed. Thank you!)

Beasts of England

blahblahblah@6:49 - 'You are 100% correct, and these will always be those who refuse to allow for the possibility of a fair trail.'

Just finished reading the NYT 10th anniversary piece, re: Tawana - 'people' had their minds made up and that was that. Damn the evidence/trial, full speed ahead.

Bruce

I am not sure if I understand what is wrong with "profiling". Cops do it routinely. A cop observing Martin would likely have been suspicious - large young male with hoodie in neighborhood he didn't seem to belong in, which had had a lot of recent burglaries. And, yes, given the realities, that he was black would be a plus in their suspicions. I think that we only lie to ourselves to think that they don't do just that. And, their suspicions probably would have increased if they had seen him up close - with his gold grill, and I believe I saw some tats (which would have been covered by the hoodie).

When I was 17, when I was 23, etc., I didn't think that it was fair that the cops profiled me. Hassled me for just being a young (white) male. Now, 40 years later, I understand. They are looking at young males because that is who commit a large percentage of the property crimes, and an even larger percentage of the violent crimes. Haven't looked at the DoJ figures for a couple of weeks, but my memory is that 75-80% of murders are committed by 17-25 year old males, and better than half by blacks, despite being maybe 1/7 or so of the population (pardon the inaccuracies of the figures, but it is quite late).

This is why TSA's refusal to profile is so ludicrous - the profile of a terrorist willing to blow up a plane for Allah is relatively clear, and it doesn't include 70 year old women, nor young girls. Worse, because of the ban on profiling, only a certain small number of people meeting the profile of the 9/11 terrorists could be double checked on any flight.

Getting back to this case - of course Zimmerman was doing a bit of profiling. We all do it on a day to day basis. And, we all would have done so in his position. Martin's age, height, dress, actions, and maybe race would have all factored into why he was somewhat suspicious. Pretending that these traits, despite having a high correlation to the types of crimes that the residents were worried about, and crime in general, were off limits is somewhat ludicrous.

Bruce

The interesting thing though about Zimmerman, in terms of profiling, is that he seems less likely to have been engaged in it than many of the rest of us would have been, in that situation.

Which is why, I think, that any attempt to bring profiling into the case would backfire on the prosecution. Zimmerman's calls to the dispatcher seem less racist than many, with the later being the one to bring race out. Combine that with his having blacks in his extended family, working with at-risk blacks, etc., and I think a good defense attorney could leave the jury with the impression that he was less judgmental on the basis of race than most, not more so. And, unless a significant portion of the jury were black, wouldn't hurt him.

That said, I almost expect the prosecution to pursue this because it is what the Black community wants. They want it to be about Jim Crow, discrimination against Blacks, etc. And, the prosecutor, as well as the feds, seem determined to curry their favor. But, as I suggest above, I don't think that it will be effective unless the jury composition is such that a lot of the jurors are looking hard for just that sort of prejudice.

BTW - anyone look into the demographics of the jury pool yet?

Bruce

I am not sure that I buy into that DD's statements might not be at least partially admissible as either excited utterances or present sense impressions.

Yes, the declarant would be/have been Martin. DD would be testifying about what he said. It would make no sense to have exceptions for the declarant saying these things in court, as he would be testifying from his own recollection (if available, which Martin is most decidedly not). Instead, the exceptions apply to those later testifying what the declarant said at or near the time of the event in question.

The reliability of these sorts of statements are predicated on the theory that the declarant (Martin) was not consciously planning these utterances, but rather were spontaneous.

The Rules of Evidence permit parties to introduce present sense impressions
and excited utterances because these statements have special indicia of reliability; as a class, each type of statement is more reliable than the usual out-of-court statement.1 A person who describes an event as it unfolds
before her lacks time to formulate a lie; the words match the events one by one. A present sense impression, therefore, is likely to offer the speaker’s accurate report of what he saw.

Similarly, a person responding to a startling event has little opportunity to concoct falsehoods. In the words of the Advisory Committee, the “condition of excitement…temporarily stills the capacity for reflection and produces utterances free of conscious fabrication.

(Hearsay Exceptions—Present Sense Impressions and Excited Utterances. Also see Wikipedia: Present sense impression)
If Dee Dee and Martin are in a cafe, and Martin screams "Duck! Zimmerman's got a gun!" just before Martin is shot, then Dee Dee could testify to that in court to establish the fact that Zimmerman had a gun, even though it's hearsay.
Let us be specific here. DD could testify that Martin screamed "Duck! Zimmerman's got a gun". She could not testify that Zimmerman had a gun, but just what she heard Martin say.

It would be hearsay because it would be introduced to prove that Zimmerman did, indeed, have a gun, and DD was just relaying what Martin had said. But, it is an exception to the prohibition on hearsay because it is an excited utterance, with the added reliability of being spontaneous and contemporaneous.

scott

3.220 (1)In any case,
including multiple defendants or consolidated
cases, no person shall be deposed more than
once except by consent of the parties or by
order of the court issued on good cause
shown.

For the record, It appears I was wrong in my earlier posts. I must have mis-read what a previous poster wrote. The no-court order only applies to LE, which I guess is standard, and makes sense now that I think about it.

cboldt

Reflecting on the "present sense impression" and "excited utterance" exceptions, DeeDee can say anything, even utter made up fiction, if her recounting of Martin's remark fits the definition of a present sense impression of Martin, or an excited utterance by Martin.


So, I find myself in total agreement with MJW, that the exception allows the testimony to come in. The issue of DeeDee's credibility is separate from the issue of whether or not the testimony is within the hearsay exception.


I believe O'Mara can get DeeDee's recorded affidavit in advance of the Arthur hearing.

(1) Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the following information and material within the state‘s possession or control:

(A) a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto, or to any similar fact evidence to be presented at trial under section 90.404(2), Florida Statutes. ...

(B) the statement of any person whose name is furnished in compliance with the preceding subdivision. The term "statement" as used herein includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term "statement" is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled

There is a provision available to the prosecutor, to limit disclosure of its evidence to the defendant.

Restricting Disclosure. The court on its own initiative or on motion of counsel shall deny or partially restrict disclosures authorized by this rule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.
Bruce
So, I find myself in total agreement with MJW, that the exception allows the testimony to come in. The issue of DeeDee's credibility is separate from the issue of whether or not the testimony is within the hearsay exception.
Which is why I think that you are correct that she will likely be deposed on multiple occasions just to see how strong her story is.

My guess? Not that strong. I think it likely that she has been coached a bit already, and that often leaves fingerprints.

There is a provision available to the prosecutor, to limit disclosure of its evidence to the defendant.
I don't see that as being applicable here. On the one hand, it is a good provision to have in the law, because there are those who do try to intimidate witnesses. And, those who succeed, or if they cannot, have them eliminated. But without a strong showing that this is likely, I think you have serious Confrontation issues.

cboldt

-- I don't see that as being applicable here. On the one hand, it is a good provision to have in the law, because there are those who do try to intimidate witnesses. --


I don't think Corey would withhold access because she believes Team Zimmerman would intimidate her. I think she would withhold access on the theory that there are those who demand a conviction, the lynch mob, would intimidate her.


All of that reads "lynch mob justice," or obtaining a conviction via intimidation. The charge is arguably brought to quell the mob, and unreasonably defending the charge is done to quell the mob. But my thought is that the law is trying to prevent acquittal by intimidation.

Bruce
I don't think Corey would withhold access because she believes Team Zimmerman would intimidate her. I think she would withhold access on the theory that there are those who demand a conviction, the lynch mob, would intimidate her.

All of that reads "lynch mob justice," or obtaining a conviction via intimidation. The charge is arguably brought to quell the mob, and unreasonably defending the charge is done to quell the mob. But my thought is that the law is trying to prevent acquittal by intimidation.

I think that is exactly correct. And, I think that the intent here is to protect the identity of witnesses - such as, for example, undercover cops.

The argument that you seem to be alluding to is that the prosecution has to hobble the defense by withholding disclosure in order to prevent race riots. But, if that is the argument, then how does the judge determine which disclosure to withhold?

In the normal operation, the prosecution could say to the judge, if the identity of witness X, or even X himself, is disclosed to the defense, then X is placed in danger. In this case, that is not likely the case. The identity will likely be known of all the witnesses, and, indeed, is probably already known for almost all the fact witnesses already, along with their likely testimony.

As I think you suggest, I don't think this can be stretched to prevent a race war. That is where the DoJ should be, instead of indirectly fanning the flames, threatening its own prosecution if it doesn't get the verdict it wants politically.

jim

So TM is on the phone from 7:01 to 7:04?
That would be before Zimmerman called the police at 7:09. How would Dee Dee know what happened before she called again at 7:12?
TM did not even seem to notice GZ until 45 seconds into the call to the police.
Crump et al are the authors of Dee Dee's tale. Another thing, Who here believes that no Audio or video exists of TM? How convenient. Charles Blow said he asked Tm's Mother. She said "maybe his cell phone." Do the cops still have it?

BTW Most of you posters, I typically identify as a liberal and I do not seem to fit your pfrofiles.

jim

Was my comment deleted?

Ignatius J Donnelly

Does anyone believe that no Audio or video exist of TM?

Jim Ryan

Welcome, liberal jim. Pour yourself a pint and take a load off.

It takes a moment for the comments to appear.

cboldt

-- So TM is on the phone from 7:01 to 7:04> --

The call log is weird that way. From 6:54 + 18 minutes would be until 7:12. I take it the T-mobile-to-T-mobile calls are the ones from DeeDee, and the ones NOT identified as T-mobile-to-T-mobile are from somebody other than DeeDee.

I also assume the phone is capable of handling more than one simultaneous connection, see the 6:45 +5, overlapping the 6:46 +2 calls (both initiated by Trayvon).

6:45 pm calling North Dade 5 minutes long (T-mobile-to-T-mobile)
6:46 pm calling North Dade 2 minutes long
6:49 pm incoming call 4 minutes long (T-mobile-to-T-mobile)
6:54 pm incoming call 18 minutes long (T-mobile-to-T-mobile)
7:04 pm incoming call 1 minute long
7:12 pm incoming call 4 minutes long (T-mobile-to-T-mobile)

DebinNC

Welcome, jim. Just a fwiw, you may notice folks adding LUN at the end of their posts. That means a click on their name with take you to the linked info they referenced.

jimmyk

I typically identify as a liberal and I do not seem to fit your pfrofiles.

Hey, we don't profile, that would seem to be some kind of crime, per Corey.

Clarice

Hi, Jim--Stick around. Most of the people who pretend to be "liberal" here are anything but , and you seem a delightful exception.

Ignatius J Donnelly

Dee Dee's account of the phone call would
have the altercation staring at about 7:12.
It actuallystarted just before 7:16. By 7:16:35 the 911 calls are comin' in. GZ is already screamin'. The authors of that fantasy should read two very interesting blogs.
Tracy Martin says he left at 6:30. TM must have split after that yet the kid who took two minutes to walk from the clubhouse to the running point.(yes, I know he stared at GZ for one minute) made the almost two round trip to and 7-11 in a half hour or so.
Did Dad know TM was going out, and going out with vague plans?
Doesn't Brandi Green's place have street access? There is a gate for automobliles but I don't see a fence that encircles the complex. Travon would not need to go through the gate or the sidewalk where GZ first searched. He could just walk down the street and stroll up to the front door. None of this is proof that he actually was doing anything but meandering but Sheesh it looks fishy.

Ignatius J Donnelly

My typing is awful

Ignatius J Donnelly

two mile round trip is what I meant.
Is Papa Martin the fun divorced Dad who is not very strict?
Did Trayvon actually leave before Dad?

"Maybe I'll go to the movies." Maybe I'll hang with your very responsible 20 year old nephew." Ciao baby.

Ignatius J Donnelly

If the "girlfriend's" testimony is to be believed then someone should figure out her Twitter account name and look at what she tweeted in the minutes, hours, days, and weeks after the shooting and before she was disclosed by Crump. Also her phone log in the same time period should be examined by investigators and the persons called interviewed about the calls.

I would hope that this has already been done by both the police and whatever private investigators that the sides have hired.

@GeoffB et al

Someone over at Wagist(I'll try to find the post)copied Dee Dee's Facebook page before it was deleted.(The same day as TM's). They offere to email the pics to anyone who asked.
The wagist person said Dee Dee's only mention of the Tm's death was on the 27th. "Trayvon got shot." On the 28th she was out shopping and hanging out at the pool.
Two weeks later she was posting photos of a new boyfriend.

cboldt
Look up the twitter name InsanelyDopeex3 that's Dee Dee, if you look at the No Limit Nigga tweets he mentions her by name. Now you can look at all her tweets all the way back to the night of the incident and there is no mention of Trayvon till the 27th. She even went to bed early the 26th it's obvious from her tweets she has aboyfriend and it's not Trayvon she does say he's her best friend though.

The Ongoing Trayvon Martin Story CNN and FOX - Conservative Tree House - Comment at April 15, 6:15 p.m.

Ignatius J Donnelly

hmmmmmmmmm thx

The comments to this entry are closed.