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1. By waiving the pretrial immunity hearing, they have, in effect, conceded that they cannot prove by a preponderance of the evidence that the defendant killed Trayvon Martin in self-defense.
False and irrelevant. The State has the burden of disproving self-defense beyond a reasonable doubt.
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2. As lawyers admitted to practice by the Supreme Court of Florida and authorized to represent themselves to the public as specialists in the practice of criminal law and trying cases, they can be presumed to know the rules that govern the admissibility of evidence in criminal trials conducted in the circuit courts.
True.
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Therefore, they knew that the information that they publicized last week about Trayvon would not be admissible at trial for any purpose pursuant to rules 401, 402, 403 and 608 of the rules of evidence.
False. Read Hornsby's blog post on the topic of admissibility of character evidence.
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3. They waited to publicize the irrelevant and inadmissible information until after the 500 people in the jury pool were notified by summons to report to court for jury selection on June 10th, thereby increasing the likelihood that most of the prospective jurors will have heard or read about it before June 10th.
Unknown if or why defense waited, but it appears that the State stonewalled discovery by belatedly providing only a binary file of the contents of Trayvon's phone. Also, the defense is obligated by Rule 3.220 to make disclosures of "any tangible papers or objects that the defendant intends to use in the hearing or trial." As far as publishing the materials, I don't think the defense published enough. In the absence of a court order regarding confidentiality of text messages, I question whether defense counsel's redaction of Trayvon's text messages to avoid further embarrassment to Scheme Team (such as by redacting Trayvon's method of smuggling weed on a bus) comports with Florida's Sunshine Laws, which generally provide that discovery information filed with the court is a public record in the absence of a court order providing for confidentiality.
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4. In an effort to avoid being held accountable for poisoning the jury panel with irrelevant and inadmissible information, Mark O’Mara blamed Bernie de la Rionda. He said BDLR withheld the information from the defense in violation of the discovery rules and the Brady rule, which requires the State to disclose exculpatory information well in advance of the trial.
MOM had nothing to avoid. It is pretty clear that BDLR has been and continues to stonewall discovery in violation of Rule 3.220.
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5. That explanation is false because:
a. the Brady rule does not apply since the information is not exculpatory for the same reason that it is irrelevant and inadmissible;
False, the information is relevant and potentially admissible as explained in detail by Hornsby.
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b. even if the information were exculpatory, BDLR disclosed it in timely fashion in early January;
Rule 3.220 provides that the State must provide discovery within 15 days of demand, which MOM made back in April, 2012. So the information was not provided in a timely fashion. Moreover, the information provided was in binary form. If BDLR had, but did not provide the information in human readable form, he violated Brady and Rule 3.220.
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c. The information was in the form of raw data, which is the same format that it was in when BDLR received it;
Unknown with certainty, but it is extremely likely that BDLR also had the information in human readable form.
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d. The defense specifically asked to be provided with the raw data and that is what it received;
The defense is entitled to have whatever the State has. See Rule 3.220 and Brady.
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e. the defense waited until after the jury summons were mailed out to retain an expert to interpret the raw data; and
Unknown when the defense retained an expert.
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f. the defense waited until the last possible moment before the May 28th motions hearing to publicize the irrelevant and inadmissible information and to file its motion asking Judge Nelson to impose sanctions against BDLR.
The information is clearly relevant and potentially admissible. Apparently the defense waited until after the defense retained an expert that translated the binary information into human readable form, discovered the exculpatory information, and then filed to sanction BDLR. Personally, I think there should have been many more motions to sanction BDLR, starting on the 16th day after the discovery demand back in April 2012.
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6. The timing and sequence of these events constitutes powerful circumstantial evidence that poisoning the jury pool with irrelevant and inadmissible evidence was the defense team’s real motive.
The information is clearly relevant, potentially admissible, and disclosure appears mandated by Rule 3.220 and Florida's Sunshine Laws. Timing of disclosure appears due to the State's stonewalling of discovery and translation of binary files by defendant's expert. People might want to acquaint themselves with Florida's Sunshine Laws by reviewing Lester's order denying the motion to seal the court file. Also note the publication of numerous text messages as discovery in the Casey Anthony case.
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7. Lawyers are required to act in good faith and prohibited from intentionally deceiving the Court.
True.
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8. Thus, defense counsel appear to have intentionally created an unringing-the-bell problem.
If the State wanted to keep any particular information secret, they had the obligation to file a motion for protective order. Rule 3.220. In the absence of a protective order, discovery material is a public record. It appears to me that BDLR bet that he could keep the information secret by only providing the binary file, and did not want to disclose the information to the court or to defense counsel by filing a motion for protective order. Recall that the defense filed a motion for protective order in an attempt to avoid publication of GZ's cousin's statements.
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9. Courtesy of Robert Zimmerman, Sr., and Jr., last week the jury panel also got to hear them say that the prosecution is the result of a conspiracy between the governor, the prosecution and the judiciary to convict an innocent man.
Good call, I agree. Neither RZ Sr. or RZ Jr. is defense counsel or bound by the attorney rules of professional conduct. They have a right pursuant to the 1st Amendment to criticize the government.
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