A Facebook Face-Off?
Sunday, October 21, 2012 at 11:53AM I don’t think there’s a person in the world that doesn’t know a big election has been brewing in the United States. Perhaps there’s a handful who don’t know, but that’s not my point. What we have is a voting population that’s very split on the two presidential candidates, Barack Obama and Mitt Romney. Republicans and Democrats alike are extremely adamant about their man to a fault. Obama has the right ideas! No, Romney is best! It’s a real lesson in American civics; a true look into the theoretical and practical aspects of our citizenship. Each side is right, of course, and their constituents are convinced of it. The other side is dead wrong. That’s the problem with people. We tend to only see virtue in our candidate and vice in the other.
If we look into the George Zimmerman/Trayvon Martin tragedy, it seems as if civilized society is divided the same way, like the parting of the Red Sea, and depending on which side of the fence we’re on, our guy was the victim. The other guy started it. As in politics, it’s a mixed up, muddled up, shook up world; only this one reeks of racism, gun rights and a sense of morality that’s unique to each of us. And as sure as the upcoming election, the truth is not somewhere in the middle. Someone is going to prevail; someone is going to be right, whether it’s the truth or not.
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I arrived at the courthouse about a half-hour or so early on Friday. As I approached the entrance, an SUV with tinted windows was parked nearby and the media were standing close enough (with microphones and cameras in hand) in hopes that George Zimmerman would emerge. I glanced but continued to walk. Once inside, I passed through security and began the standard ritual of putting my belt back on and putting all my stuff back in the correct pockets. That’s when I looked up and, there, within inches, was George. As he walked by me, we looked into each other’s eyes, but it was for a mere second. As he continued to head toward the elevators, I turned and followed him with my eyes. My, my, I thought, George put on quite a few pounds.
Less than a minute later, I was ready to go up to the fifth floor courtroom. A local TV journalist accompanied me on the ride up. She asked if I had seen him. Yes, I responded, he just walked by me. She said he looked like he gained a hundred pounds! I figured he must be pretty lethargic these days, I told her; not being able to go anywhere for the most part. That, and all the pizza and Chinese takeout he probably eats. We both chuckled briefly, but then the door opened and we were ready for business.
Before you go into the courtroom, you must pass through another security check. Unlike the last hearing, this time we didn’t have to remove our belts and shoes — just what was inside our pockets. Moments later, I entered the double doors and took a seat near the back.
When court came to order, Judge Nelson got right down to business. I don’t want to give you a blow-by-blow account of what transpired during the next hour-and-a-half. After all, most of you watched it on TV, saw it on the news or, marginally, read about it on a Website. Right now, I’m more interested in the ramifications of some of the judge’s decisions. I will say that, from what I and most of you observed, Judge Nelson will be a perfect fit for this case. She’s quite adept and strict enough to keep both sides in check. No nonsense, in other words, but she’s not without a sense of humor, either, which is great for calming nerves and abating tense moments from legal disagreements.
I didn’t get the sense that any of the attorneys were all that familiar with her style. Certainly, with Bernie de la Rionda, I could understand, but Mark O’Mara and Donald West didn’t seem to feel right at home, either. One thing is clear, she will not allow her courtroom to veer off course one bit. When O’Mara and de la Rionda started to whine and snap at each other like yappy little dogs, she told them to heel, and heel they did. She wasn’t gentle, nor was she harsh. She just made it clear enough to let them know what she expects from them. It was exactly what I anticipated at the heat of the moment. She recognized how it could have easily gotten out of control and made an “adjustment.” West, on the other hand… he’s a pitbull, and even when the judge admonished him, he kept going. This guy has a chip on his shoulder and he makes O’Mara look like a saint, with de la Rionda somewhere in between. I am sure George would freak if West were working for the other side. Big Boi Don West.
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With no fanfare or special order, here’s the way I saw the judge’s orders. She granted the State’s request for George’s medical records, but limited how much the prosecution would get. How much? O’Mara was willing to give them 30 days before the incident and 30 days after. However, he handed the court all documentation that was available to him. Judge Nelson said she would look at the logs and dates and decide what is appropriate based on privilege. Personally, I think the State should get everything, but it’s just my opinion.
I’m not going to bother with the phone call recording that Benjamin Crump turned over to the FBI. After a discussion, that one will be resolved, and most of the nitpicking issues over evidence will be cleared up, too, so I’m not going to write about them unless they become problematic down the road.
What was interesting was the motion filed by West asking for regularly scheduled hearings. In that motion, he also asked for a second judge; a senior judge to oversee docket soundings, but Judge Nelson never entertained the thought. I think, by that time, West knew better than to address it. She had pretty much made it clear at the docket hearing earlier in the week, which she reiterated, that her schedule would remain wide open for them, including weekends and holidays. She will do whatever it takes to move this case forward.
This leads me to the meat of the hearing — Citing prior case law, the judge granted the defense motion seeking Trayvon’s Facebook and Twitter records. Since Zimmerman is mounting a self-defense claim, he has a right to see evidence that may support any aggressive and/or violent behavior by Trayvon. It will be tough, though, because they’ve got to go through Facebook and Twitter to get those records. Not an easy task.
Here’s where some of you may not agree with me. I think the defense has a right to see it and I will explain why. Just like in this heated election, we have a propensity to take sides. Not only do we take sides, we fervently believe our man is right and the other guy has got to lose. That’s all there is to it. Only it doesn’t work that way in a court of law. No matter how you feel, the way our system works, George is innocent until proven guilty. The law favors him, not Trayvon. Sad, but true. Florida law states:
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:
(a) Character of accused.—Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.
(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.
(c) Character of witness.—Evidence of the character of a witness, as provided in ss. 90.608-90.610.
O’Mara cited Dwyer v. State, 743 So. 2d 46, 48 (Fla. Dist. Ct. App. 5th Dist. 1999):
Generally, evidence of a victim’s character is inadmissible, but a defendant who alleges self-defense can show, through the testimony of another witness, that the alleged victim had a propensity for violence, thereby inferring that the alleged victim was the aggressor. Smith v. State, 606 So. 2d 641 (Fla. 1st DCA 1992); see also Ehrhardt, Florida Evidence § 404.6 (1999 ed.); Graham, Handbook of Florida Evidence § 404.1 (1987).
A defendant’s prior knowledge of the victim’s reputation for violence is irrelevant, because the evidence is offered to show the conduct of the victim, rather than the defendant’s state of mind. Ehrhardt. Accordingly, evidence of one of the victim’s reputation for violence was not prohibited by Dwyer’s lack of prior knowledge of that victim’s character traits.
Here’s where I am rather confident, though. Let the defense have at it. When I was 15-years-old, I called out a kid in school. He never showed. There was no fight and nothing was reported. Suppose we did fight. Would that be enough to render me a violent youth? A “gangsta” in today’s world? Would Mr. O’Mara use that against me? You bet he would. But the point is, I never got close to a fight again in my life, and that kid I called out has been my best friend ever since. You’d better believe that Mr. de la Rionda would be quick to point that out, too.
O’Mara said that videos exist showing Martin’s involvement in MMA (mixed martial arts) fighting. I say, let him find them. Trayvon’s parents will counter that their son never took MMA lessons. O’Mara will tell the court that Trayvon boasted of beating up other kids. I will tell you right now that male children and young adults readily tell their peers how tough they are, but does that make it true? They will boast about their manhood and brag about prouesses sexuelles, outstanding abilities in bed and incredible lasting power, not to mention a long list of nameless conquests — nameless because they don’t exist. I know, because I heard them all growing up. So did O’Mara, and if he plans to use this sort of thing to trash Trayvon, it would be a real disgrace. It’s braggadocio, and everyone does it. Besides, it doesn’t prove a thing.
O’Mara was also granted power to subpoena the Facebook and Twitter accounts of Trayvon’s girlfriend because he’s convinced her online posts will contest the story she gave police about being so devastated by his death that she couldn’t attend his funeral. Like she got over him in record time. Judge Nelson told de la Rionda that he can contest this part of the ruling in writing if he wishes.
Let me tell you, I have a friend with a 15-year-old daughter and she flits around hourly. Friends come and go on a mere whim. Adults forget the mind of a teenager, when hormones rage. Besides, people mourn in their own way. Put the girl’s mother on the stand and see what she’s got to say. While O’Mara shreds the children, why not look at what the Zimmermans told each other about being rich and famous while he sat in jail. “It’s gonna be a great life!”
Did Trayvon’s death bring her a great life?
I will say this. If Trayvon was such a tough and violent gangsta, how come no one has come forward? So far, I haven’t heard a peep out of anyone he went to school with. I think the defense is going down a dangerous and slippery slope; one that could backfire if handled improperly. You’d better be able to prove what you say, Mr. O’Mara, or your name will be sliding down an ugly and vicious path.
One final thought… I wouldn’t put it past ANY defense attorney to make their client look sickly and weak in court, hoping that the judge takes pity. Just look at the poor, poor boy and what he’s been through. Instead, I hope the judge keeps Trayvon’s memory alive. He’ll never have an opportunity to get fat, and by the time O’Mara gets into his character assassination mode, Trayvon is going to be transformed right before your eyes and ears — from a momma’s boy into a horrible monster. Just remember, monsters aren’t real. George is.
Cross posted on the Daily Kos
Dave Knechel | tagged Barack Obama, Democrats, Mitt Romney, Republicans | in Benjamin Crump, Bernie De la Rionda, Dave Knechel, David B. Knechel, David Knechel, George Zimmerman, Judge Debra S. Nelson, Marinade Dave, Marinade Dave Knechel, Mark O'Mara, Slimm v. Zimm, Sybrina Fulton, Tracy Martin, Trayvon Martin, Zimm v. Slimm, marinadedave | Share Article 
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Reader Comments (120)
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Thanks, Tommy's Mom!!
Upthread, New Spirit wrote a comment that I think is important to address:
"Dave, since picking a jury in a high profile case seems to be getting more difficult with today's technology, do you think that soon we will see professional juries? We have grand juries so why not petite juries? Just pick the jurors at random from a database of jurors who have been screened to see if they are of sound mind and are on the ball. Instead of a jury of your peers, change the words to a jury of the seers. Just think of all the hassle it would save. TIA
Although the U.S. Constitution does not guarantee the right to a jury of your peers, the U.S. Supreme Court has had much to say on this matter. A trial jury must be made up of ordinary citizens, like you and me. Depending on the crime and the state, the jury could be made up of 6-12 people, generally.
A grand jury is something else. Many states don't even use them. There are no federal laws that dictate their usage. However, there are federal grand juries that convene. Convene is the important word. In a trial, jurors meet every day, once seated, and hear the entirety of the trial before rendering a verdict. In some instances, keep in mind that a defendant has a right to reject a jury altogether and go with the judge's decision.
With respect to a grand jury, grand juries do not decide if someone is guilty of criminal charges. Grand juries listen to evidence and decide if someone SHOULD be charged with a crime. Grand juries can be made up of 23 people, where a 12-member majority makes the decision whether to charge someone or not. (In a trial jury, the decision must be unanimous.) Grand juries can be seated for up to 6 months and hear a number of cases. They may convene once a week, twice a week, or when necessary, which may end up being once a month or less.
Grand juries do not have to be quite as impartial as a trial jury, either, because it's tougher to prove bias during the voir dire process. In other words, courts have rejected claims of bias on the theory that all a grand jury does is bring charges, so even if biased, the person they charge can still prove their innocence at trial.
There are several problems with the concept of a professional jury. If they are allowed, they will be employees of the government, which would be their employer. That's how they would be paid. Therefore, they might be inclined to side with the government. If these people are paid professionals, they wouldn't be anonymous sanitation workers or waitresses, necessarily. They would be people with names and could be subject to attack and possible juror tampering. Who would be in charge of choosing these people, too? Professional jury pickers?
How would a professional jury be seated? That's a very complex question. Would they be case-specific? By that, I mean, comprised of outstanding strategists and creative thinkers with a lot of experience and expertise in the area relevant to the crime? In civil cases, a crime may not have been committed. These are issues I have with professional jurors.
I think your comment, including the question regarding professional juries, is excellent. I certainly welcome any and all discussion on this matter. I do believe, though, that it will be a long, long time before this government allows anything less than a jury of our peers, although the U.S. Constitution does not guarantee the peers part. Article 3, Section 2 of the constitution states that, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
The 6th Amendment narrows the definition of the jury by requiring it to be "impartial." Therefore, juries need only be impartial, and not made up of one's peers. In my opinion, a professional jury could remove the guarantee of impartiality.
Dave, I certainly appreciate you taking the time to respond to me. Your explanation makes a great deal of sense. This would be a good topic for discussion at some later time. I am looking forward to that hearing today. Once again, a big thank you, Dave.
Fox 35 Orlando Live Link
WKMG Click Orlando Live Link
You may not see me today. I am in the courtroom, but I am seated on the right side as you see it. I will probably be taking notes on my iPad, but I will try to say hi when I can.
Oh I saw you Dave! I forgot all about this hearing today. I just so happened to tune to the InSession channel and saw Dave walking in. You were chatting it up with the bailiffs before I saw you sit on the (tv) right.
Thank you Dave for attending. You look like you're feeling better. Or, you just look good in navy blue?
Why was O'Mara late? George doesn't look as puffy as he did before. Maybe they took the salt shaker away? Or he eased up on the booze?
The audio seems to be off in the court room. Or it's the InSession channel?
Can't wait to read what Dave observes.
Unfortunately I am missing so much of today's hearing live because of visitors and I sure would like to be able to sit later and listen to the whole hearing again if anyone knows that this will be available as a repeat somewhere. What little I did listen to was O'Mara and his nit picking how bad George has been made out to be through the media and the internet at which I am surprised because he and George have been out there themselves. Difficult to hear judge Nelson's voice, but may be because I was on Axiom.
Dave, You have at times spoken of your having a high forehead. I noticed the men there of intelligence who spoke had high foreheads. Couldn't see you anywhere but hope to have a sneak peek later. I am impressed with your reply above to New Spirit regarding jurys, in which I have a lot of interest as most anyone else. You will have a lot to write on today's hearing. Your take is always most interesting and explanatory. We are grateful for your attending and sharing with us on your blog. Attorney O'Mara seems to be jealous of internet information available to the public but like he said that's the way it is today. I should think that public in general are becoming more aware of a lot of things going on around us because of the internet. Your blog posts are particularly best because of your those like yourself who have a dedication to report, not just your personal views but generously inclusive in fairness and fact in any opposing view as well. Until later!
Thank you marinade Dave!
Dave~~I got to see you just fine even when you went over to the other side. You looked like you were busy on the laptop taking notes. I am going to withhold any commentary on the today's hearing and wait for your post. I will just say that I thoroughly enjoyed watching the proceedings and getting to see the attorneys from both sides in action. I did take notice of Judge Nelson and tried to read her expressions. From what I observed, I do not think she will enforce a gag order but we will know on Monday when she reveals her decision. So, Mr Knechel, we will await your take on today's events. Thank you for beings our eyes and ears from a close-up stance.
A high note on today's hearing was the mutual nod and smile shared between Bernie De La Rionda and Mark O'Mara while packing up their files when the proceedings had ended.
There were a few tense moments when O'Mara and his client were not seated at the defense table at exactly 1:30pm. I noticed that Judge Debra Nelson seemed to appear to have the "let's get this over with" demeanor as she took her seat at the bench. A look of annoyance combined with a bit of impatience in her mannerism showed this judge means business and tardiness will not be tolerated.
She seemed to soften somewhat when the defense attorney along with his client made a hasty entrance with an apology and an explanation about a faulty monitoring system.
My main objective is to watch the performance of the attorneys. I don't know what to make of Don West. He comes across as being hyper with a short temper. I am not sure how much experience he has had in courtrooms or if he is a late bloomer. I will say one thing that he is not going to win any popularity contests with the sitting judge. I wonder if there is past bad chemistry between Judge Nelson and West. The looks that went between the two of them today, I think their feelings for each other are mutual and I don't mean in a good way. O'Mara should sit down with West and have a long talk about professionalism in a courtroom. If things do not improve, maybe West should be replaced.
The most intriguing part of the hearing were the arguments presented about the gag order. As I observed the attorneys, so very different in their style and mannerisms, it was like day and night or black and white. If I were to compare De La Rionda and O'Mara as being artists, I would describe Bernie as daubing tiny squiggles of color on a paint by number. He was all over the place and his argument was going off with too many directions. His argument was also so lengthy that he became boring. I wonder if he numbers those pages he kept reading from.
On the other hand, O'Mara came across as a Rembrandt. He applied the brush strokes with ease and painted a picture that I do believe made an impression on the judge. You cannot take it away from Mark, he is one heck of a great speaker. It is not what he says, it is how he presents it.
In regards to George Zimmerman, I challenge the best body language expert around to read that guy.
I missed the hearing again today! Laid down for a nap and slept for 8 hours! Hope someone posts it somewhere. I see the judge is waiting to decide on the gag order. I'm still not used to the sunshine law down here in Florida, but it smacks of violating lawyer client privilege to discuss a court case before it's even tried. And for what reason? To slant public opinion and thus taint the jury. It needs to stop. I'm getting the impression that Z's lawyers think that if they stay quiet and let the brouhaha die down they won't get a fair jury or something. Or maybe they're hoping for an upsurge in public donations when they do it? Who knows, but it needs to stop.
The hearing kind of drained me today. I'm going to collect my thoughts and hope for a write-up tomorrow. It was interesting but long.
Yes, Sarah, that was me chatting it up with the bailiffs. They are all very nice at the courthouse. George was late because his ankle bracelet needed to be adjusted. O'Mara apologized for the delay and the judge understood.
MO, if I have a high forehead, it's only because it goes all the way to the top of my head and beyond, to the other side. I assure you, it has nothing to do with intellect.
New Spirit - Yes, it was my iPad, actually. I took lots of notes. Glad you saw me.
Thanks, y'all.
Tommy's Mom's Link--Click friendly
I finally found the song that goes with that video it's Danielle Bisutti – “The Shadow of My Heart (Theme from the Motion Picture SHADOWHEART)"
Beutiful song and beutiful girl singing it.
Judge Nelson denies gag order!!
SANFORD – Circuit Judge Debra S. Nelson today refused to issue a gag order in the George Zimmerman second-degree murder case.
In a two-page order, the judge wrote that she found no "overriding pattern of prejudicial commentary" and noted that media companies who had opposed the order, including the Orlando Sentinel, were right when they argued that the state had failed to demonstrate prejudice.
The judge also noted that she had several tools to make sure Zimmerman's jury is impartial. She can move the trial to another county, have attorneys question potential jurors one at a time and away from other potential panel members and, once seated, she can give stern instructions about avoiding outside sources of information.
Her order included no criticism of O'Mara and no hint that she believes he should do things differently.
Read more here...
Judge denies gag order in George Zimmerman murder case
That decision was the right one and it didn't surprise me in the least. I guess I can write-up my report on Friday's hearing and this, now that the dust seems to have settled.
Once I find Judge Nelson's order denying the gag motion, I will post it unless someone can find it first. I am anxious to read it.
All eyes are on the the skies and Mother Nature which is taking priority today. I am praying for all those people in Sandy's path.
Dave if the order does not criticize Mr O'Mara's choices how would this affect the chances of ineffective counsel on appeal if Mr Zimmerman decided to go that route? If he is convicted, of course.
I am just kind of curious because of the Hannity interview. When Mr Zimmerman changed his story again? God's plan and the skipping away all the while his Attorney sat there. I expected this from the Judge. The Law is pretty clear about Gag orders (researched it ). Personally I am glad she did not issue the Gag Order. Mr O'Mara went on and on about Mr Crump so I felt sure if an order had been issued it would have included him also. Trayvon's parents should not lose their voice. IMO
ORDER DENYING SECOND MOTION FOR GAG ORDER
A quote from one of the Martin attorneys, "Frederick Leatherman blog, that the defendant in the Trayvon Murder Case, has a refund receipt for his CCW license..." This is supposed to be found in the discovery documents. My question is, "If this is true, when was the license revoked or denied for George Zimmerman? If prior to the shooting, why has additional charges not been brought against GZ at this time?"
Sorry your comment was stuck in moderation all day, politicsnewsaja. Unfortunately, I must moderate comments and yours was missed by me.
I am not aware of a refund receipt, but I do know Zimmerman did have a lawful CCW permit, so if he had a refund coming, it was for overpaying or something else. I do know that the price dropped $10, from $85 to $75, I believe. If someone knows more than me, then I'd like them to come forward, but had his permit been revoked at any time, that would have been all over the news.
Thanks for commenting, and I will try to be more alert from now on.