As I wrote the other day, George Zimmerman attorney Mark O'Mara filed a motion for sanctions against Florida prosecutors for withholding information favorable to the defense. It was a very civilized pleading, supported by factual instances, letters and e-mails.
Late yesterday, in response, the state filed one of the most scurrilous, unprofessional pleadings I have ever had the misfortune to read. I have uploaded it here.
I cannot imagine such a pleading being filed in our federal courts by any Assistant U.S. Attorney. If this is acceptable protocol for Florida state prosecutors, I'm glad I neither practice nor live there.
I have no interest in the diatribe contained in the pleading. But I do want to discuss a few factual allegations and the legal issue.[more..]
The Witness 8 Letter
The state attached to its motion a handwritten letter from Witness 8, dated March 19, 2012, the day she was interviewed by Martin family lawyer Benjamin Crump. The “letter” is her version of what she heard on the phone with Trayvon Martin the night of the shooting. Thanks to Diwata Man for transcribing it:
March 19, 2012
I was on the phone when Trevon decided to go to the Cornerstore. It started to rain so he decided to walk through another complex because it was raining to hard. He started walking then noticed someone was following him. Then he decided to find a shortcut cause the man wouldn’t follow him. Then he said the man didn’t follow him again. Then he looked back and saw the man again. The man started getting closer. Then Trevon turned around and said why are you following me!! Then I heard him fall, then the phone hung up. I called back and text. No response. In my mind I thought it was just a fight. Then I found out this tragic story.
First: Witness 8 twice misspells Trayvon's name as 'Trevon.” Didn't she know him since kindergarten? I can't find any other friends of his who referred to him as “Trevon.”
Second: According to the state, Witness 8 gave the “letter” to Sybrina Fulton on March 19, before her telephone interview with Benjamin Crump. (“See attached letter Witness 8 gave Victim's mother, Sybrina Fulton, prior to the recorded telephone call with Trayvon Martin's attorney, Benjamin Crump. (Exhibit B).” The letter is not addressed to anyone, and consists solely of her version of events of Feb. 26. It seems to me Sybrina was just a conduit and the statement was intended for Crump. But Crump says in his affidavit he and Witness 8 never discussed the details of her conversations with Trayvon before their phone interview. In the description of his unrecorded preliminary interview with Witness 8, he emphasizes that he didn't want to know the details of her calls with Trayvon before taking her oral statement. He write that he:
Briefly confirmed that, consistent with the phone records recently made available to my clients, Witness 8 had, in fact, been speaking with Trayvon for much of the day on February 26, 2012 and – without eliciting or then learning the substance of anything that Witness 8 might have heard while speaking with Trayvon – further confirmed that Witness 8 had been speaking with Trayvon in the minutes leading up to his death and that she appeared to be one of the last persons to speak with Trayvon while he was still alive [and]
….Instructed Witness 8 that, until we actually started the Interview in earnest, I did not want her to reveal to me, inter alia, the substance of anything she might have heard during her conversations with Trayvon on February 26, 2012 and that, whatever she knew, I needed her to provide a complete and truthful account during the Interview;
Had he read this letter? If he did read it before the phone call, isn't it a bit disingenuous of him to stress to the court that he instructed Witness 8 not to tell him the details of her account before he began recording her statement? Whether she told Crump orally or in writing seems like a distinction without a difference: If he read the statement, he knew the details of her account before conducting the interview. Since Sybrina Fulton was present for the interview, and had received the statement before he commenced the interview, it seems very unlikely she wouldn't have shown it to him before he called her.
Third: It seems to me the prosecutor has now joined Crump in throwing Sybrina Martin under the bus. I explain how Crump did so here. In the recorded interview of March 19, after Witness 8 tells her story to Crump the first time, he stops her, and not only asks her to repeat what Zimmerman said, but reminds her she had given a different version earlier to Tracy and Sybrina. In Sybrina Fulton's April 2 statement to prosecutors, she told the prosecutor that she and Witness 8 had not discussed the details of Witness 8's last conversation with Trayvon. Tracy Martin similarly stated that he hadn't discussed the details of Witness 8's conversations with Trayvon in his April 2 interview.
By attaching the statement from Witness 8 to its motion, which the state says was given to Sybrina Fulton on March 19 before Crump's interview, and which solely consists of details of what she heard while on the phone with Trayvon before the shooting, the prosecutor, like Crump, is acknowledging that Sybrina Fulton's April 2 statement to prosecutors was not completely true: She had learned the details of Witness 8's version of events directly from Witness 8 well before April 2. The fact that Witness 8's version of her last calls with Trayvon were handed to her instead of relayed orally, seems to me to be a distinction without a difference. They were still communicated to her by Witness 8.
Why would Sybrina Fulton and Tracy Martin deny to prosecutors on April 2 they and Witness 8 had discussed the details of Witness 8's phone calls with their son? Take a look at the transcript of Crump's March 20 presser (available in the 3/22 CNN transciprt of the press conference, trumpeting his discovery of Witness 8. He bashes the Sanford police and says he doesn't trust them.
We're going to turn this over to the Department of Justice and their investigation because the family does not trust the Sanford Police Department in anything to do with the investigation.
On April 2, while the case had been transferred to the state prosecutor's office, no decision had been made to charge George Zimmerman. Perhaps Crump didn't trust the State's Attorney any more than the Sanford police at this time, and didn't want his clients sharing the details about Witness 8 with them.( Crump was at Sybrina's on April 2 and met with the prosecutor. On March 26, Sybrina and Tracy were also interviewed together on March 26, a week after the Crump interviewed Witness 8. Crump was present for the interview. There is no reference to Witness 8 in that interview.
Making a false statement to a law enforcement officer or prosecutor is not a trifling matter, regardless of whether it's under oath. Federally, it's a crime (ask Martha Stewart.) I'm not suggesting The Martins committed a crime. I'm suggesting their credibility as witnesses in this case is now in play, and the defense is entitled to investigate it further.
Fourth: This is now the third time Witness 8 has said Trayvon Martin initiated the verbal encounter between him and Zimmerman. In her March 19 account to Crump, her April 2 account to the prosecutor and again in this letter, she says Martin askZimmerman, “What are you following me for?” and Zimmerman responds. The state continues to ignore its own witness' account. In its response, it writes:
….it is important to set the record straight about a few undisputed facts.
….Defendant confronted Trayvon Martin
Not only is that disputed and not non-disputed, it is contrary to the three statements of Witness 8 and the testimony of the state's investigator at the April 20 bond hearing:
O'Mara: So do you know who started the fight?
GILBREATH: Do I know?
O'MARA: Do you have any evidence that supports who may have started the fight?
The motion has other misrepresentations of disputed allegations as undisputed facts (for a total of 3 out of 4):
- ” Defendant observed Trayvon Martin (incorrectly profiled him as a criminal)” – disputed. According to Zimmerman, it was Martin's behavior and actions that caused him to report him as suspicious. He never mentioned race or clothes until asked about them by the dipatcher.
- “Defendant followed Trayvon Martin (and continue to do so after being told not to)” – false, he was told “we don't need you to do that” to which he said “okay”. Zimmerman says he then began walking back to his car, so. At best, ita disputed fact.
On the legal issue, I'm out of time and will have to write a separate post. Let me just suggest that it is the prosecutor, not O'Mara, who needs a dictionary, and preferably a legal one, on exculpatory and impeaching information and the duties of disclosure. Significantly, he admits Witness 8's hospital lie is impeaching information he had a duty to disclose:
The State agrees that potential impeachment material should be (and has been) disclosed. Defense Counsel admits that he was informed on March 4, 2013, before any hearing on the matter, that the witness had not gone to the hospital. Defendant completely fails to identify any actual prejudice or additional cost affiliated with this issue.
- Brady v. Maryland, 373 U. S. 83 (1963)
- Strickler v. Greene, 527 U.S. 263 (U.S. 1999)
- Giglio v. United States, 405 U.S. 150 (U.S. 1972)
- United States v. Bagley, 473 U. S. 667,(1985)
- United States v. Agurs, 427 U. S. 97,(1976)
- Kyles v. Whitley, 514 U. S. 419, 421,(1995)
- Banks v. Dretke, 540 U.S. 668 (2004)
In a nutshell,
- a Brady violation occurs when the government fails to disclose evidence materially favorable to the accused. favorable information encompasses “exculpatory” and “impeaching” Information. A prosecutor’s duty to disclose impeaching information is the same as his/her duty to disclose exculpatory information.
- Favorable information is any information that might help the defense attack the government’s case or mount an affirmative defense: In determining what must be disclosed under Brady “the [prosecution’s] guiding principle must be that the critical task of evaluating the usefulness and exculpatory value of the information is a matter primarily for defense counsel, who has a different perspective and interest from that of the police or prosecutor.”
- When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within the general rule of Brady. Because of the value of cross-examination, when the credibility of a prosecution witness is important, impeaching evidence is subject to Brady disclosure. Impeaching information can be a substantive reason to doubt whether the Government has sufficiently proven defendant’s guilt. The obligation to disclose exists regardless of whether the information subject to disclosure would itself constitute admissible evidence.
- The Brady doctrine encompasses any information, directly admissible or not, that would be favorable to the accused in preparing her defense, including information useful to preparation or investigation that may lead to admissible evidence or have some meaningful impact on defense strategy
- Impeaching information includes inconsistent statements about the same incident (which also may be exculpatory) and witness specific information (such as evidence of past dishonesty).
- The more specifically the defense requests certain evidence, thus putting the prosecutor on notice of its value, the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption. A reviewing court may consider directly any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant’s case. 473 U.S. at 682-83.
- “When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.”It is illegitimate for a prosecutor to assert pretrial that it may withhold Brady information because the defense should be able to learn of this favorable information through other means. In Banks, 540 U.S. at 695-698, the Court declared that “[a] rule . . . declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.”
- The disclosure obligation under Brady extends to information useful to preparation or investigation that may lead to admissible evidence or have some meaningful impact on defense strategy.
That's all I have time for now….to be continued.
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