Zimmerman legal team: Fine prosecutors for hiding witness lies

Pity Judge Debra Nelson. Her life has just become very, very interesting. That’s “interesting” as in the ancient Chinese curse:

“May you live in interesting times.”

THE MOTIONS:

On March 25th and 26th, George Zimmerman’s attorney, Mark O’Mara, filed two successive and related motions that appear to be a significant departure from his past demeanor and strategy. The first is a motion to sanction the prosecution for its slow rolling and refusal to provide discovery, and the second, a motion for attorney’s fees incurred as a result of the prosecution’s deceptions.

The first portion of the initial motion deals with DeeDee and her significance to the case. O’Mara notes that Benjamin Crump interviewed her on or about March 19, 2012, and prosecutor Bernie de la Rionda conducted a sworn interview with DeeDee on or about April 2, 2012.

In the Crump interview, DeeDee told Crump she was a juvenile. She also said:

“Ben Crump: And why couldn’t you go to his wake?

Witness 8: I was just sick… that day.

Ben Crump: And what happened? Where did you go?

Witness 8: I went on Friday um Friday I was just sick so I just stayed home and then my mama came and she took…around 2 something…hospital the next day.

Ben Crump: So you had to spend the night in the hospital>

Witness 8: Yes.

Ben Crump: And this made you so sick that you had to get medical assistance?

Witness 8: Yes…. I was the last person talking to him and I fell…

Ben Crump: And that’s when you realized that the day of his wake that you were the last person talking to him and it just made you physically sick?

Witness 8: yeah.

Ben Crump: Okay.”

O’Mara continues with a portion of the interview de la Rionda conducted with Dee Dee (the complete interview is available at Update 11):

“Mr. de la Rionda: Okay what happened?

Witness 8: I didn’t feel good.

Mr. de la Rionda: Okay did you end up going to the hospital or somewhere?

Witness 8: Yeah. I had like, um, high blood pressure.”

O’Mara, carefully building his case, also noted:

“5. Finally, on August 2, 2012, Witness 8 was flown to Jacksonville for yet another interview by Mr. de la Rionda. According to the deposition testimony of Witness 8, this interview (which was not recorded and it is unknown whether or not it was sworn) was the interview when Witness 8 told Mr. de la Rionda that she had in fact not gone to the hospital, lied about it to him, and to Mr. Martin’s family.”

This is interesting–and significant–for several reasons, but more about that later. O’Mara further writes that Mr. Crump has, in several public appearances, claimed Dee Dee was a juvenile entitled to significant protection. O’Mara writes that in a hearing on October 19, 2012, de la Rionda made an “offhand reference” questioning whether Dee Dee was actually a juvenile:

“Mr. de la Rionda: I know who the person is, and I’ve cited the person. But we’re very far afield here, speculating, with all due respect to Mr. O’Mara, as to who the person is. He knows the name, because I’ve disclosed the name. But there’s been an indication here she’s a juvenile. Have they proven that?”

O’Mara asked, on record during the hearing, and after the hearing what de la Rionda meant, but “that question was not answered.” In his enclosed notes, O’Mara wrote:

“It became apparent that Mr. de la Rionda knew that Witness 8 was an 18 year old adult in April of 2012 when he interviewed Witness 8. However, the State redacted that information from the Defense until months later.”

Regarding his deposition of Dee Dee, O’Mara wrote:

“7. Witness 8’s deposition was taken on March 13, 2013. During that deposition, Witness 8 testified under oath that she had advised Mr. de la Rionda in the above referenced August interview that she was an adult, and had not, in fact, gone to the hospital; that she had lied about going to the hospital when she advised Mr. Crump of that statement, and that she had also lied to Mr. de la Rionda when she told him in the April 2, 2012 sworn interview that she had gone to the hospital.”

But why would Dee Dee repeatedly lie? O’Mara continues:

“The reason Witness 8 gave for lying to Mr. Crump was that Trayvon Martin’s mother, Sybrina Fulton, was present during the interview. Similarly, Witness 8 stated that she told Mr. de la Rionda the same lie because during Mr. de la Rionda’s sworn interview of Witness 8, for unknown reasons, Ms. Sybrina Fulton was sitting next to her, and Witness 8 felt the need to deceive as to the reason for not going to the wake or funeral.”

Why this might cause her to lie about her age goes unanswered. O’Mara asked the Prosecution about hospital records via e-mail on August 23rd, 2012, but got no response. A letter was sent on September 19, 2012, but it too went unanswered. O’Mara also spoke with the prosecution about these issues several times, but again, received no answer. O’Mara filed a motion for a subpoena of the medical records on February 21, 2012. He wrote:

“12. This is significant because Mr. de la Rionda knew this information well before even the first email…[08-23-12]…was sent, and before the second correspondence…[09-19-12]…, yet continually failed to inform undersigned counsel. It was in this context that the State failed to inform undersigned counsel of this significant and exculpatory information until such time as the evening before the Subpoena…motion was heard by this Court.”

O’Mara writes that only on March 4, 2013 at about 7:00 PM did Mr. Guy of the prosecutor’s office tell him about Dee Dee lied to Mr. Crump. Apparently, Guy my have informed O’Mara that she also lied to de La Rionda on April 2, 2012. O’Mara continues:

“It is also now known that witness 8 lied to Mr. de la Rionda during his April 2, 2012 interview of her, which, for unknown reasons, occurred under the unique circumstances of being conducted in the presence of other state witnesses such as Sybrina Fulton. Based upon this evidence, it is apparent that the State Attorney’s Office was fully aware that Witness lied about the relevant and significant parts of her testimony, and the state knew this no later than August 2, 2012. In addition, the decision to conduct the interview in the living room of Ms. Fulton’s home, and to allow any other state witness, particularly the decedent’s mother, to be sitting next to the witness during the interview, when Mr. de la Rionda had to know the potential influence that could occur, places the legitimacy and veracity of the entire statement at issue.”

As I noted in Update 23, O’Mara continues to be a master of understatement. In his notes, O’Mara included a statement made by de la Rionda in the March 5th hearing that appears to neatly encapsulate the prosecution’s attitude toward justice and the truth in this matter:

“When asked on March 5th how long the State knew Witness 8 had not gone to the hospital, the State responded, ‘Frankly I just don’t think that’s necessary. They can depose the witness and ask her….’”

O’Mara continued his mastery of understatement:

“14. The decision by the State Attorney’s Office to fail to disclose this information was willful, voluntary, and caused the undersigned sounsel additional time, frustration and effort to attempt to find out this information through other means such as additional correspondence, additional conversations, additional investigation, delay in scheduling the deposition of Witness 8, and finally, the filing of a Motion for a Subpoena…”

15. The evidence of Witness 8’s deceit in this regard is significant exculpatory evidence as it goes to her credibility concerning her other statements and as such the State Attorney’s Office has an affirmative obligation under Brady v. Maryland, 373 U.S. 83 (1963) to disclose.”

O’Mara asked the court for an order requiring the prosecution to reimburse the defense for “all of the time expended to seek out this information otherwise readily available to the State Attorney’s Office.” He also asked the Court to “…fine the Office of the State Attorney for this willful and flagrant violation of discovery for their causing unnecessary delay in proper preparation by the defense for this case….” He also asked the Court to admonish the state for failing to live up to its discovery obligations and “…order strict and prompt compliance with discovery rules in the future.”

O’Mara also noted many past instances of prosecution slow rolling and obfuscation of discovery.

The March 26th motion contains extraordinary revelations about the prosecution’s continuing unethical and unprofessional behavior. Following usual procedures, O’Mara, in advance, notified de la Rionda of every aspect of Dee Dee’s March 13 deposition, including the fact that it would be professionally videotaped. When O’Mara arrived on March 13 for the 9:00 AM deposition, with a professional videographer, the factual, unemotional prose of the motion doubtless does not do the scene justice.

De la Rionda refused to allow the deposition to proceed if videotaped. O’Mara explained that his draft and filed notices of deposition–both of which were provided to the prosecution–specified that the deposition would be videotaped, including the applicable state rule allowing it. However, de la Rionda claimed state rules did not allow it, and would not relent.

For hours, O’Mara tried to speak with Judge Nelson by long distance phone to resolve the matter and offered to go ahead with the videotape with the understanding that if the Judge ruled against him, the taping would be stopped and the tape could be secured by the State or destroyed, but de la Rionda still would not allow it. O’Mara repeatedly offered this, but de la Rionda was unmoved. O’Mara wrote:

“9. That undersigned counsel advised Mr. De la Rionda of the applicable rules in this regard including Criminal Rule of Procedure 3.220(8)(1) which identifies that depositions may be taken upon notice and to the extent that the procedure for taking the deposition…shall be as provided in the Florida rules of Civil Procedure. Undersigned counsel then referenced Florida Rule of Civil Procedure 1.310(b)(4) which states that videotaped depositions may be taken without leave of court or stipulation to the parties provided the deposition is taken in accordance with the subdivision (a) of the rule which states that the notice is to state that the deposition is to be videotaped and give the name and address of the operator. In this particular case, that was appropriately done for all videotaped deposition notices.”

O’Mara wrote the de la Rionda ignored the rules and continued to obstruct the deposition. As a result, the deposition was delayed more than five hours. O’Mara does not specify this, but it appears de la Rionda was finally forced to give in by order of Judge Nelson.

O’Mara lists the Florida rules that authorize sanctions, including reimbursement for costs, failure to comply with discovery rules and/or other related rules. O’Mara requested a total of $4,555.00 in reimbursement, which is hardly unreasonable.

The PDF document includes copies of the draft and file copies of the notices of deposition. Both include the fact that the depositions would be videotaped and specifically name the company. Also included are affidavits indicating that O’Mara’s hourly rate is $400.00 and Don West’s is $350.00.

ANALYSIS:

As this case has drawn on, I have become increasingly convinced that the behavior of the Prosecution goes beyond mere incompetence into the realm of malice. There have been indications, including some amount of direct evidence, that they have done all they can to slow roll or entirely impede discovery, all the while claiming that it was O’Mara that was trying to obstruct his own work.

In Update 20, I reported on an early February hearing where Judge Nelson denied O’Mara’s request for a continuance of the June 10 trial date. I wrote:

“One might be tempted to think the system is working to deny Zimmerman the resources and time he needs to mount an effective defense. Prosecutor Bernie de la Rionda asserted that Zimmerman should not be granted additional time to prepare and that he did not need expert witnesses. Judge Debra S. Nelson agreed in part and denied a continuance of the June 10 trial date.”

I also noted that de la Rionda, in his interview with Dee Dee, did not reveal the presence of the entire scheme team: Benjamin Crump, Daryl Parks, and Natalie Jackson, and now we discover that Sybrina Fulton was not only present for the interview, it was conducted in her home(!?) and she was sitting next to Dee Dee! The presence of the Scheme Team was first reported in Update 18 via the report of the Florida Department of Law Enforcement agent that served as a chauffer for the Scheme Team. That report does not positively place them in the room for the entire interview–it does place them at Fulton’s home–but it is unreasonable to believe that if they went to the trouble to appear at Ms. Fulton’s home at the time of the interview they would not be sitting in on the interview.

In the Update 11 transcript, de la Rionda says only this about those present:

“As I told you, my name is Bernie de la Rionda. I’ve been appointed by Miss Corey, who has been appointed by the governor of the State of Florida to handle this case that I’m going to be asking you questions about. Also to my right is Detective..uh..or Investigator T.C. O’Steen with the State Attorney’s office. We’ve come from Jacksonville, here along with some agents with the Florida Department of Law Enforcement, and we are at [redacted] because you have agreed to come here today, is that correct?”

Correct interview protocol is, first, to have only the person being interviewed present, and second, as few interviewers as possible–usually no more than two–present, and to clearly identify each and every person present. This is done to fully and clearly identify every potential witness to the interview. To do otherwise is evidence of incompetence, corruption, an attempt to conceal evidence, or all three.

I cannot say this often or strongly enough: interviews are never–never–conducted with others in the room, particularly other parties to the case. As O’Mara so dryly observed, this compromises the interview because while it’s possible to predict that a given person being interviewed would be affected, by say, the presence of the victim’s mother, it’s never possible to predict exactly how, or to what degree. Anyone seeking the truth, in other words, conducts interviews with only the person being interviewed, and at most, one other interviewer. To do otherwise is unprofessional, unethical, and frankly, stupid.

Yet here is Deputy Special Prosecutor Bernard de la Rionda conducting an interview with Dee Dee with Trayvon Martin’s mother sitting right next to her, and also with Investigator T.C. O’Steen in the room. And it is highly likely the entire Scheme Team was also looming over Dee Dee.

We also now know that–according to Dee Dee–Sybrina Fulton was present during Crump’s interview of Dee Dee. We do not yet know who else was present for that interview (other than Matt Guttman of ABC News and an ABC technician, name unknown).

This might cause a cynical person to begin to wonder whether the prosecutor’s office has been engaging in unethical collusion with the Scheme Team and with Martin’s parents.

Some in the blogosphere and elsewhere have been claiming that Dee Dee did not lie. That’s over now. According to O’Mara, she has admitted it in her March 13 deposition. I doubt O’Mara would misrepresent this as it is in black and white on the transcript, and on videotape. One can reasonably argue about whether she should be prosecuted for perjury, particularly since it now appears her motivation to lie might have been at least partially induced by Crump and de la Rionda’s incompetence, but there is no doubt she lied at least twice under oath.

We also know that de la Rionda knew of two exculpatory lies by Dee Dee as early as April 2, 2012, but despite being asked about this multiple times in the intervening months, did not disclose the information to O’Mara until March, 4, 2013, a total of 336 days–nearly a year. De la Rionda disclosed that information not because he recognized his legal, ethical duty to disclose it, but because he would be forced to do so in open court the next day.

Remember that during the nearly one year that he was concealing information that he knew would utterly destroy the credibility of his “star” witness, and with her credibility, his case, he had multiple opportunities to do the right thing, opportunities when he was all but asked highly specific questions, yet he kept that information hidden. From the production of the transcript of his interview of Dee Dee, he opted, instead, for a cover up, redacting any mention of her true age. Update 11 shows the number of redactions, particularly in the early portion of the interview where she apparently provided that information. There can be only a single reasonable explanation: knowing how damaging the revelation of these two lies would be, he plotted to stonewall and obfuscate in the hope no one would find out.

Remember too that even in court, de la Rionda repeatedly claimed that he was doing nothing to impede the defense. He even blamed the defense for what he knew were his own deceptions and delaying tactics. In short, he lied, repeatedly, to the court.

Throughout this case, many have written that the prosecution wouldn’t be so stupid as to do X, Y or Z. We now know they would be exactly that stupid. How anyone could possibly believe that kind of information would remain hidden is almost impossible to fathom. Perhaps it’s a function of a certain warped political mindset, arrogance, power madness, an unthinking belief in the narrative that surpasses reason, all of these or more.

The bottom line is O’Mara has caught de la Rionda in blatant violations of the law and of his obligations as an officer of the court. There is no question that if he has done as O’Mara alleges–and his own actions and statements indicate that he has–that he is culpable for many violations of legal ethics, and possibly, multiple crimes.

Particularly deranged is de la Rionda’s behavior on March 13. His bizarre obstruction of Dee Dee’s deposition is all but inexplicable. Confronted with the law, which plainly showed O’Mara was acting fully within the law, he continued to obstruct and delay. What competent prosecutor wants to prevent his star witness from telling the truth? This is all the more bizarre when one realizes that the law is clear, and de la Rionda must have known all he could do was delay, never halt the deposition, which was indeed the case. Why did he do it? Dee Dee’s lies about her age and about going to the hospital had already been exposed; what else did he fear? It’s possible his behavior could have been inspired by arrogance and malice, but more likely, he feared that Dee Dee would actually tell the whole truth.

Probably, he didn’t want her deposition videotaped. It’s one thing to hear a halting, barely literate Dee Dee on audiotape in court, but quite another to see her on videotape. She will, of course, offer direct testimony in person, but if necessary, she is now on videotape, her own images and words available to impeach her if necessary. Consider too that we do not know all that she said regarding de la Rionda, the Scheme Team and others involved in the Prosecution. It is, however, now all on tape.

I’ll not get into speculation about what truths Dee Dee might provide. That will likely be revealed in due time.

De la Rionda’s actions in holding Dee Dee’s interview in Sybrina Fulton’s living room is jaw-droppingly bone-headed. In all of my years in law enforcement, I cannot imagine a law enforcement professional even thinking of such a thing, let alone doing it. That stunt alone screams incompetence, possible corruption, and undue influence. Seating Martin’s mother in the same room, to say nothing of right beside Dee Dee, is simply dumbfounding. How anyone with de la Rionda’s supposed experience could possibly do something so incredibly stupid beggars description. And putting–potentially–the three members of the Scheme Team in the same room is equally troubling. How, under those circumstances, could anyone’s testimony remain uninfluenced? If Dee Dee’s testimony was essentially worthless before this information become known, it is far less than worthless thereafter. Not only is de la Rionda a poor interviewer–as I noted in Update 11–he now appears to be hopelessly incompetent, or equally hopelessly unethical.

The full involvement of Crump remains in the shadows. We know that he has, in multiple venues, claimed Dee Dee was a juvenile and done all he could to keep her from the public and from the Defense. O’Mara’s motion suggests only that Dee Dee lied to him. However, Crump had more than sufficient motivation to want to hide Dee Dee from scrutiny. He had to know that her testimony amounted to nothing, and that it would be highly likely to harm the prosecution, yet he misrepresented her testimony and was instrumental in obtaining the arrest of George Zimmerman.

I’ve little doubt O’Mara has a great deal more evidence about Crump’s involvement, but he is wisely releasing only what he needs to prove specific, narrowly tailored points at the appropriate times. I have a feeling that those who have impugned Mr. O’Mara’s motives and competence might want to be–if they are honorable–contemplating retractions.

FINAL THOUGHTS:

NOTE: The Orlando Sentinel reports that the Defense has filed a new witness list with some 130 names. Certainly the Defense will not use all of these witnesses, but it’s an interesting, and likely effective, tactic which might just cause the prosecution to reverse itself and demand a continuance of the trial to find out what they all might have to say.

In addition, the Defense and NBC have mutually agreed to stay further work on Zimmerman’s defamation suit against NBC (See Update 20 for additional information) until the resolution of the criminal case.

Judge Nelson’s actions will reveal a great deal about her character, judicial temperament and conduct of the eventual trial. My sense of her, based on nothing more than what I’ve been able to read in public sources, is that she is somewhat hostile to the Defense and obviously deferential to the Prosecution.

No one should doubt that lawyers dislike disciplining each other, and virtually everywhere, judges are lawyers. Judges generally will not impose sanctions on attorneys absent the most blatant, outrageous, public insults to the Court. Lawyers comprise a small and exclusive fraternity, and they are jealous of its prerogatives. As those at the top of this exclusive hierarchy, judges are always mindful of their positions, and the fact that it is the body of lawyers that ensures they keep that position. Favors, subtle and gross, are the currency of the daily practice of law.

In this case, there is, again, no doubt de la Rionda has committed multiple violations, and under Florida law, the judge has substantial discretion in deciding what, if anything, to do. O’Mara has wisely asked for only the most defensible, rational, and logical sanctions, sanctions clearly within Florida law. What he is likely to get, if anything, is a mock stern admonishment of the prosecution from the bench, essentially a slap on the wrist, and a warning that they’d better shape up and fly right from now on. Fines are unlikely, and anything more serious, almost ridiculously improbable, but for Judge Nelson to do nothing in this set of circumstances would destroy her credibility and tarnish the Florida bench for years to come.

Keep in mind that O’Mara is building a strong record for appeal, should that become necessary. Considering the nature of these motions, O’Mara now has a very strong basis to ask for a continuance of the June 10 court date–should he decide that’s necessary.

We are now at the point of asking: what did Angela Corey know and when did she know it? If Corey knew, in early April, 2012, of Dee Dee’s lies and did nothing to see that the Defense was properly informed, she is as guilty of malfeasance as de la Rionda. If she was unaware of this–and this would seem to stretch the boundaries of credibility–it does not speak well for her managerial abilities.

More and more, it is becoming painfully obvious that there are a great many questions that must be asked of everyone involved with the prosecution. That may, of necessity, take place after the trial, but it must take place. That is, if there is any semblance of justice in Florida, and if the Florida bar has any sense of honor and integrity. All of this remains to be seen.

If she is wise, Judge Nelson is pondering that ancient Chinese curse even as these words are written. And well she should.