Here's what Jerilynn had to say about the events yesterday. She also talks about a recent case where the Immunity was raised during the trial. This might be where MOM is headed. Still hoping Deb will raise the question about raising Immunity protection in a Civil Court.The first significant motion to be heard was the defense request for a subpoena to obtain the hospital records of Witness 8, Trayvon Martin's 19 year old phone friend. (Starts at 13:40 into part 1.) The defense advised the court the subpoena was no longer necessary as the state told them yesterday the records did not exist. Witness 8 had lied when she told Trayvon Martin's lawyers and the state prosecutor (the latter under oath) she could not attend Trayvon Martin's wake on Friday, March 2, 2012, because she had gone to the hospital where she spent the night. More on this at the end.
The second big issue was the immunity hearing. The Judge asked the defense if it still wanted the court to reserve the April, 2013 date for a pre-trial hearing on the issue of immunity from prosecution or had decided to "roll it into the trial." O'Mara said the hearing dates could be released.
Most of the prosecution argument was done by State's Attorney John Guy and FDLE Attorney David Margolis. Towards the end (7:47 into second part of hearing) State's Attorney De La Rionda referred to O'Mara waiving his right to raise stand your ground. The judge interrupted him and told him O'Mara hadn't waived the issue, he just said a hearing in April would not be necessary. She said we'll know if he intends to raise the issue when he files a motion.
My take:
O'Mara can raise the immunity issue at trial. He can file a motion to dismiss based on immunity shortly before trial (or whatever cut-off date the court sets) and waive his right to a pre-trial hearing on the issue.The matter would proceed to trial. At the end of the prosecution's case, the defense would ask the court for a motion to dismiss the charges based on his motion he is immune from prosecution. He would also ask for a motion for judgment of acquittal, arguing the state had not made a sufficient case to go to the jury.The judge would rule on both motions. If denied, the defense would present its case to the jury. It would argue self-defense. The burden of disproving self-defense beyond a reasonable doubt is on the prosecution.
After the defense completed its case, it would renew both its motion to dismiss based on immunity from prosecution, and its motion for judgment of acquittal.
If those motions were denied, the jury would deliberate and return a verdict. It could find Zimmerman not guilty, guilty of lesser offenses, or guilty of the charged offenses.
When was the last time a Florida case proceeded this way? Last month, in the trial of Daniel Diodato in Martin County. Diodato and his wife had placed an ad in Craig's List offering his wife's companionship services. Kyle Hicks responded and came to the couple's trailer. After his "session" with Diodato's wife, Diodato said Hicks refused to pay and got aggressive, threatening him and his wife and causing him to fear for his wife's safety. He shot Hicks in the butt.
Daniel Diodato told the jury on Thursday he shot Kyle Hicks after Hicks became aggressive and threatened his life.
Diodato said the night Hicks visited his home, he was responding to an ad his wife, Sarah Diodato, had posted promising companionship. Diodato told the courtroom Hicks did not seem to want to pay his wife for sexual activity and became agitated.
Diodato said when Hicks began "mixed martial arts" wrestling him, he was left with no choice but to shoot Hicks with his shotgun....State prosecutors argued Diodato was not protecting himself and was after collecting money from Hicks. Prosecutors said Hicks was shot as he was trying to leave the scene and that the story told by Sarah and Daniel Diodato does not add up.
The shooting happened in October, 2011. The trial began on January 29, 2013. Diodato did not file a motion to dismiss based on immunity until the week before trial. Here is the docket, which shows:
1/24/13: Defense files Motion to Dismiss Based on Fl. Statute 776.032 (Stand Your Ground)
1/25/13: Defense files Amended Motion to Determine Immunity and Dismiss Based on Fl. Statute 776.032
1/28/13: Jury selection begins. Defense waives right to pre-trial hearing on stand your ground motion.
1/29/13: Opening Arguments. Defense tells jury Diodato acted in self-defense. Prosecution begins case.
1/31/13: Defense argues motion for judgment of acquittal and motion to dismiss based on stand your ground immunity. Both are denied. Defense begins its case, Diodato testifies.
2/1/13: Defense concludes case and renews motion to dismiss based on stand your ground immunity and motion for judgment of acquittal. Both are denied. (Judge denies immunity on ground that Hicks was trying to leave when Diodato shot him from behind.) Jury deliberates, returns verdict of guilty on lesser offenses (misdemeanor assault and battery vs. aggravated felony assault and battery carrying 20 and 25 year mandatory sentences) and guilty of the felony of deriving proceeds from prostitution
2/18/13: Diodato sentenced to time served on the assault and battery and 30 months on the felony of deriving profits from prostitution.
From the Docket:
1/31/13: Court Minutes[.] Defense Motion for J.O.A Count 1 - 3 - denied[.] Defense Amended Motion to Dismiss Count 1- Denied[.] Defense Renews All Previous Motion and Objections
02/01/2013 Court Minutes[.] Defense Renews All Previous Motion and Objections - Judge[:] All His Previous Rulings Stand and Objection to Motion in Limine Ruling Remains[.] Defense Renews Motion for J.O.A.[.]Denied[.] Defense Renews Motion (Stand Your Ground)to Find Defendant Immune from Prosecution- Denied [.] Jury Finds the Defendant Count 1 Guilty of Battery a Lesser Included Offense[,] Count 2 Guilty of Assault a Lesser included Offense[,] Count 3 Guilty as Charged[.] All Bonds Revoked Pending Sentencing
In other words, all O'Mara has ceded is the right to a pre-trial hearing on whether George Zimmerman is immune from prosecution (and the right to seek a immediate writ of prohibition in the District Court of Appeals, which if successful, would preclude a trial from taking place.) O'Mara can still file a motion to dismiss based on immunity, argue it to the Court at the close of the state's evidence and renew it at the close of his case, before it goes to the jury. The judge would determine the motion based on the evidence presented at trial. If denied, O'Mara can still argue self-defense, including self-defense based on the immunity/stand your ground statute, to the jury. See, for example, McDaniel v. State:
When a defendant's motion to dismiss on the basis of immunity is denied, the defendant may still assert the issue to the jury as an affirmative defense. Peterson, 983 So. 2d at 29.
As Florida Judge Milton Hirsch explained in the Wyche case:
If, at a pretrial hearing, a defendant meets his burden and establishes his claim of immunity by a preponderance of the evidence, any charge as to which the immunity applies would of course be dismissed. If, however, the court finds that the defendant has not met his burden, the court's ruling has no preclusive effect, whether pursuant to the "law of the case" doctrine, the issue preclusion doctrine (i.e., collateral estoppel), or any other doctrine. Such a defendant would still be free at trial to plead his claim of immunity to the jury.
At trial the burden of proof is exclusively on the prosecution to establish the guilt of the defendant beyond and to the exclusion of a reasonable doubt. To earn an acquittal, the defendant need do no more than show reasonable doubt - a quantum of evidence considerably less than a preponderance. And any attempt to bar a defendant from asserting a lawful defense based on the trial court's ruling that the defendant had not sufficientlv established that defense at a pretrial hearing would no doubt run afoul of the defendant's constitutional entitlement to a fair jury trial, see U.S. Const. amend VI; Art. I Sec16, Fla. Const.
The jury, in finding Zimmerman not guilty based on self-defense, whether its decision is rooted in the immunity statute or traditional self-defense, is not making a finding on immunity from a future civil suit. It is merely deciding whether the state has proved the criminal charges it brought, or lesser included criminal charges, beyond a reasonable doubt.
If the jury rejects self-defense, including that based on the immunity statute, Zimmerman can argue on appeal that the court erred in not dismissing the case based on the immunity statute before it went to the jury. He can also argue on appeal the court erred in rejecting his motion for judgment of acquittal, based on the state’s failure to disprove self-defense beyond a reasonable doubt, and any other pre-trial and trial errors (for example, rulings on discovery such as refusal to order disclosure of witness addresses, Brady violations, refusal to grant a trial continuance evidentiary rulings at trial and jury instructions.)
As to Witness 8, I doubt she will be charged with perjury, particularly if the state still intends to use her as a witness. The defense will be able to use her prior statements and misstatements to impeach her, and show the jury why she lacks credibility as a witness.
Here's what she told the prosecutor in her sworn statement:
BDLR: Were you able to go to the funeral or to the wake?
Dee Dee: I was goin’ to go, but…
BDLR: OK, what happened?
Dee Dee: I didn’ feel good.
BDLR: OK, did you end up going to the hospital or somewhere?
Dee Dee: Yeah, I had high blood pressure.
Benjamin Crump on 3/20/12:
In fact, she couldn't even go to his wake she was so sick. Her mother had to take her to the hospital. She spent the night in the hospital. She is traumatized beyond anything you could imagine.
Benjamin Crump and Sybrina Fulton interview with Matt Lauer on the Today Show, March 21, 2012 (available on Lexis.com):
Ms. FULTON: .... She was distraught because of the situation that happened with Trayvon and that--the fact that she was on the phone with him when he--when the incident occurred--right before the incident occurred. So she was very distraught. She had to go to the hospital. She was hospitalized. She also mentioned to us that she had feelings for Trayvon, so it hurt her dearly to know that he has passed away.
Radar online
(unnamed source: "His girlfriend became absolutely inconsolable and had trouble breathing so her mother took her to a nearby hospital emergency room. She had never seen her daughter this upset before, ever. She had a battery of tests, including an EKG, and was there for over 12 hours. Doctors ultimately told her that she was going to be ok, but advised her mother to keep a close eye on her and try to minimize the stress around her."
The audio of the Crump-Witness 8 interview originally provided to the defense in May, as well as the so-called enhanced version have been posted at GZlegalcase.com.
I just listened again, and from what I can tell, in part 6, when Crump asks her why she didn't go to the wake, she says she was too sick, she didn't go to school that day. Crump asks what she did, and she says she stayed home, and around 2 pm , her mother took her to the hospital. Crump says “And you had to spend the night in the hospital?” and she says yes. (It seems like Crump, who says he only learned of her identity the day before, already knew this.)
Crump says, "So this made you so sick you had to seek medical attention?” She says "Yeah." And adds, “When I found out I was the last one to be talking to him, I couldn’t believe it.”
In part 7, Crump tells W-8 “Thank you so much, and tell your mother thank you, and Sybrina, Mr. Martin, Trayvon’s mom and dad, their call last week, Oh I do want to say this.” What does that mean? Is he saying her parents called Trayvon’s parents or the Martins called her parents the week before? Crump and Tracy Martin both said they only learned about W-8 on March 18 when Tracy logged onto his T-Mobile Account. Of course, his co-counsel Natalie Jackson told it a little differently on Democracy Now on March 30:
JUAN GONZALEZ: And you’ve had to hire your own investigators because of the terrible job that has been done so far by authorities in ascertaining the facts in this case?
NATALIE JACKSON: Yes. And, you know, I don’t know if it’s a terrible job or just they thought it was inconsequential to do the job. You know, there’s—whether or not it was important to do or it was bungled, we don’t know. But we had to go out and investigate this case. We hired an investigator that got the phone records. And once we saw Trayvon’s phone record, because he was on the—he had his phone with him, and we saw that he was on the phone when this incident purportedly happened. We contacted the person he was on the phone with. It was a young girl. And she told us that she heard Zimmerman approach Trayvon. And this is very extraordinary, because she and Trayvon—according to the phone records, there was a phone call at 7:12. The phone call lasted for four minutes. That would make it 7:16. According to police records, they were on the scene at 7:17, and Trayvon was dead. So, this young girl is a very important witness.
Add to this, the multiple representations by Crump that W-8 was 16 and a minor, which we now know is not true (she was 18 when interviewed by Crump and 18 a month later when interviewed by prosecutors) and that they were dating, While Crump made them out to be Romeo and Juliet, she told the prosecutor when he asked if they were dating, “We were getting there.”
If Witness 8 ever makes it to the witness stand, the state will argue these are minor points. It will probably argue the age and dating discrepancies were misunderstandings by Crump, and she was too embarassed to admit to the prosecutor that she hadn’t gone to the hospital as she told Crump. Her lie about the hospital may not directly relate to her final phone calls with Trayvon, but what about her embellishments, such as, when she talked to Crump, there’s no mention of her being able to hear “a little something” like “get off me,” like there is when she told her story to the prosecutor two weeks later? What will the jury think of her not telling anyone that she was on the phone with Trayvon until the Martins called her and told her about the phone records?
How will she answer the defense when, after admitting she didn’t go to the hospital as she told both Crump and the prosecutor, they ask her, “Were you lying then or are you lying now?” If the jury thinks she’s lying about anything, they can disregard her testimony entirely. If they think she (as opposed to Crump) is responsible for the misrepresentations about her age, her health on the day of the wake, the nature of her relationship to Trayvon, her excuse for not coming forward or anything else, how can it not be game over for her credibility on everything?
I'm not sure the state will even call Witness 8. She could be a mine-field. The defense is scheduled to depose her in a few weeks. It will be interesting to see if they display a renewed sense of confidence in their case afterwards.
Any highlighting is mine. link to article below
http://www.talkleft.com/story/2013/3/6/5418/05480
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