In layman's terms, a prosecutor has a duty to turn over all evidence of innocence to the defense, and failing to do so is a violation of the law and ethical rules.
I should note this includes expert reports, especially when the underlying evidence is of the "data dump" variety.
Unfortunately, it is extremely common for prosecutors to try to skirt this rule. Much like police protect one another, employees of some district attorneys are expected to cover these violations as an almost routine matter.
As prosecutors enjoy almost absolute judicial immunity, the regulations in the Rules of Professional Conduct are all that provide for sanctions in case of a violation. This measure has proved rather toothless as many state ethics boards, often composed of former prosecutors, are reluctant to issue sanctions.
Even in the most egregious violation of the Brady rule that I have seen, which occurred during the Duke lacrosse team case when ex-DA Nifong hid an exculpatory DNA report, the state ethics bar did not issue sanctions for that violation.
Credentials: I am not a lawyer, but I have worked as a paralegal for several years and captained a mock trial team for both high school and college. I have written documents that have been submitted in the courts after approval by attorneys, some specifically on this point.
They do use a form of adversarial process, with attorneys for both the complainant and the state presenting their sides of the case. But with a biased panel, little justice is served.
From my perspective, many attorneys place too much trust in the notion that a lawyer is a trusted "officer of the court." Because most attorneys believe themselves to be capable of neutrality, they trust others to do the same. In reality, everybody carries their bias with them.
The most effective solution is the one we have painstakingly developed over 900 years of common law jurisprudence: neutral juries composed of citizens chosen by lot.
Prosecutors do serve a purpose in society. A small percentage of the people they incarcerate are actually dangerous and need to be restrained. However, the kinds of people that are attracted to spending their lives destroying the lives of other humans tend to be vindictive monsters and generally awful people, not unlike the worst of those they prosecute. I hope he sues for wrongful termination and is successful.
There is some debate about whether or not the state in fact turned over this evidence. As I understand it, the state turned over an image of Treyvon Martin's cell phone in a format that the defense experts were unable to read. According to the state, this fulfilled their discovery obligations in this matter.
What's scary are the number of everyday cases that don't attract major media attention where this has almost certainly happened without anyone ever knowing.
Whether Trayvon Martin was a peaceful person or not is irrelevant, there are no direct witnesses of the actual fight between him and Zimmerman and Martin had definite reason to fear for his own safety that night. This evidence seeks to imply racist stereotypes of black men being hyper-aggressive.
It's my opinion that if a white person had those photos on their phone, it would count negatively against a claimed peaceful character as well.
Unfortunately whether Martin was peaceful or not is absolutely not irrelevant. An important part of a trial like this is character construction / deconstruction by the prosecution and defense.
I suggest that it is. Let's agree you are a peaceful person; now imagine the following sequence of events, which I've tried to present in the most neutral terms possible.
a. You are walking along the street, at night, talking to someone on the phone.
b. You notice me following you, driving my truck at walking pace, for at least a full minute - half a block, probably.
c. You pause and stare at me. I stare back. You see I'm also on the phone.
d. You approach my vehicle a bit more closely.
e. Something makes you decide to turn and begin running away from me.
f. You hear me get out of my truck and start running after you.
Now, just answer me one question: how would you describe your situation at this point?
Should their photos be allowed into evidence? I.e. should the jury be allowed to consider: 1) their support for a hardline right-wing sheriff; and/or 2) their membership in an armed anti-immigrant organization? Or would that bias the jury?
I get that you're trying to pose the question of whether the homicide victim was also an aggressor, but if so we need to include the context that the person in question was fleeing the defendant when the alleged aggression took place.
If I chase you down the street for no good reason, and you turn around and punch me in the nose, who's at fault?
It has absolutely nothing to do with Martin being black or white or any other color, nobody said the missing information is relevant because Martin was black (and that fact was obvious from the start, so nobody in his right mind could claim there's some new information there) - the claim was that the information was relevant because Martin allegedly had closer relation to violence and firearms that was previously known. Nobody ever claimed that Martin was aggressive because he was black.
The racism charge is pure bullshit. It is a fallacy to claim that it is always racist to say some particular black man is violent, because it "implies the stereotype". Well, some people are violent, and some black people are too - and the question was not whether Martin was black and thus violent (it is obvious he's black but that says nothing of him being violent) but whether Martin was violent regardless of him being black. And the data in the phone was relevant to that. Exactly because it is not imply that Martin was violent just from him being black, we need some evidence beyond that to figure out if he was - and the phone data is that evidence.
Are you arguing that the judge was wrong not to let evidence of Zimmerman's violent past be introduced?
The basis of my reservation, which may seem extremely pedantic, is twofold:-
First, it's undisputed that Zimmerman spent several minutes following Martin while commenting on his suspicions to the police dispatcher. At some point Zimmerman exited his car, came face-to-face with Martin, and then they had an altercation. It seems quite plausible to me that Martin might have punched Zimmerman in the nose as alleged.
But it's not the case that Zimmerman was doing his own thing, ran into Martin, and was attacked by him. Rather, we know from the recorded phone call that Zimmerman followed Martin for at least two minutes in his car, at which point Martin ran away and Zimmerman got out of the car and began to follow him (per http://en.wikipedia.org/wiki/Shooting_of_Trayvon_Martin which has the audio recording). Under Florida law (http://law.onecle.com/florida/crimes/784.048.html), Zimmerman's behavior up to that point amounts to at least harrassment, and arguably aggravated stalking; it was certainly reasonable for Martin to believe that Zimmerman, through his actions alone, presented a credible threat to him.
Whether Martin was a peaceful person or not is thus (IMHO) mooted by the undisputed fact that Zimmerman was chasing him. Running away from another person is the exact opposite of an aggressive posture. Pursuing a person who is running away, by contrast, places the object of pursuit in a defensive posture. One could certainly argue that when Martin approached Zimmerman's car to 'check [him] out' and then ran away, that he had misapprehended Zimmerman's lawful intentions. But when Zimmerman got out of car and started running after him, that could only be interpreted as a threat. The act of pursuit made the situation into a conflict, in which Zimmerman was the aggressor.
It's worth considering what the outcome of this would have been had Zimmerman not shot Martin as he did - ie, supposing Martin had punched Zimmerman, knocked him down and straddled him as alleged by Zimmerman but that the police had shown up and stopped the fight before it went any farther. First, Martin would have have been able to argue that he was standing his ground in response to an unprovoked assault by Zimmerman; and second, that if Zimmerman had been convicted of aggravated stalking (and his behavior definitely constituted the elements of that crime: 1) wilful 2) malicious 3) repeated following, and 4) making a nonverbal threat placing the target in reasonable fear for his safety), then simply by virtue of carrying a weapon during the commission of that crime, he would have been subject to a mandatory minimum sentence of 10 years (http://law.onecle.com/florida/crimes/775.087.html).
Second (and this is more abstract), whatever the contents of Martin's phone, they were not known to Zimmerman at the time of their interaction. So they could not have had any bearing on Zimmerman's assessment of Martin. In other words, it would make no logical to sense to say 'Z was afraid of M because M was the sort of person who talked about fighting and trading firearms' - you're inviting the jury to consider knowledge after the fact as an input to Zimmerman's self-defense claim.
Now it might seem like the prosecution is doing that with regard to Zimmerman's past history of studying criminal justice and so on - but that's part of the prosecution's job in terms of demonstrating motive and prior knowledge. The prosecution is not attributing such insight to Martin, who knew only that he was being followed by a stranger in a vehicle. There's no requirement for the prosecution in a homicide case to limit itself to the information that was available to the victim at the time of the incident (otherwise you'd be able to get away with murder as long as the victim were surprised).
Almost universally in American law, the legitimate use of force in self defense can be summed up as "meeting force with force." Merely pursuing someone is not even assault and committing battery in response is thus unlawful. That is to say, Martin could not have lawfully attacked someone who was merely pursuing him. It would only be lawful self-defense on Martin's part if he was repelling physical violence (say, a punch or a kick) initiated by Zimmerman with equal force.
Again, though you may have a moral objection to how the law assigns blame here, that doesn't change the law.
Also, it's not an undisputed fact that Zimmerman was chasing Martin. Zimmerman, for one, disputes that. He claims that he got out of the car to see the street sign and then later tried to get a better view of where Martin went. Zimmerman claims he was attacked as he was walking back to his car. You don't have to believe Zimmerman, but the evidence presented to rebut his claim was hardly conclusive.
And yes, Zimmerman totally had no idea what was on Martin's phone and so the evidence is of absolutely no bearing on what Zimmerman thought of Martin. However, Zimmerman claimed that he was attacked by Martin. Nobody saw the beginning of the confrontation, so the only word we have is Zimmerman's. The prosecution called Zimmerman a liar on this point, so the evidence could show violent tendencies on Martin's part, bolstering Zimmmerman's story. It's not direct evidence and it's certainly prejudicial against Martin, but the defense certainly had the right to try to use it.
It's unclear what Zimmerman found suspicious about Martin's behavior besides his looking around as he walked down the street.
pursuing someone is not even assault
I disagree. You're arguing that someone who wasn't engaged in any criminal activity should be OK with kerb-crawling followed by foot pursuit. I would not be OK with someone following me down the street in such fashion.
Also, it's not an undisputed fact that Zimmerman was chasing Martin. Zimmerman, for one, disputes that.
The police dispatcher asks him whether he was following Martin and Zimmerman replied in the affirmative. This is just a fact. From the transcript of his call:
Dispatcher: Are you following him?
I'm inclined to give his words on tape during the actual incident much greater weight than whatever a posteriori account he offered afterwards. After all, he wasn't on the hook for a homicide at the time he got out of the car.
Moreover, Angela Corey specifically claimed the prosecution does not have to disclose such evidence until the actual trial and can submit affidavit of probable cause based on half-truths, like it's some kind of poker game. Looks like she went further and did not disclose some of the information even after the trial started, which is clearly against the law. Moreover, if the verdict were different, it would most probably be a base for an appeal and good chance for the verdict to be thrown out due to prosecutorial misconduct and possibly another trial arranged, at great cost to both taxpayers and all participants. It is not a behavior that one has to condone in prosecutors, regardless one's opinion on the merits of the case. Even guilty ones should be prosecuted cleanly, in fair trial, not by violations of the laws and prosecutorial dirty tricks.
I doubt that. Most public records laws I have ever seen explicitly state that if you are a State employee and you have documents which you know to be germane to an ongoing criminal investigation that they must not be destroyed, and that knowingly destroying documents in such a case is an offense.
The relevant paragraph is,
Peek's letter contends that on May 24, Kruidbos wiped clean the information on a computer assigned to him, thereby violating public records law.
I can't even think what this may have to do with racism other than you trying to play race card at a completely inappropriate occasion or just using "racist" as a general swear word.
Then you aren't thinking very hard.
I find it disturbing that government employees in Florida can approve raising their own pensions.
Regarding the data, it is possible that the prosecutor decided the data is not relevant for the case and that there is no need to embarrass the victim who cannot defend himself.
There is no dispute that the victim was not armed at the time of the attack. Having died as the result of the attack he did not really have an opportunity to hide his gun afterwards. It being established that he was unarmed at the time of the attack, his relationship with guns before the attack is not really relevant. The fact that he had a picture of a gun on his cell is really irrelevant.
That's a dangerous justification.
First, the prosecutor is not the arbiter of relevance. The evidence should be turned over, and then the judge can make a determination as to its relevance. Allowing prosecutors to decide the relevance of evidence in their care would open the door to myriad abuses.
For example, in a DNA case, what would stop a prosecutor from saying a third or fourth sample found that matched other individuals wasn't "relevant" to the case?
Second, the notion that the "victim... cannot defend himself" is not only factually incorrect but immaterial. The deceased, who has not yet been proven to be a victim of anything, has the power of the state, armed with billions of dollars, a prison system, and a small army of investigators to defend him. The defendant has only his counsel and his wits.
More importantly, damage to that person's reputation is not relevant to the prosecution of another individual. Our justice system is supposed to place a premium on the rights of the defendant, since the harm of incarcerating an innocent person is considered so grave. If the deceased's memory is tarnished by messages regarding previous violent actions, or purchases of deadly weapons, that is a price that must be borne to ensure the accused's right to a fair trial.
Finally, the bar to relevance is extremely low. The rules of evidence state that relevant evidence it is any item which makes a fact in dispute more or less likely to be true. Note that it does not set any minimum bar on how much the evidence would influence the case, only that it affect an issue in dispute, even in the most minute fashion.
In this case, it is the defense's contention that the deceased acted violently and in fact provoked the confrontation, and that the accused acted only in self defense. It is also their contention that the deceased reached for a firearm.
It is certainly relevant that the deceased's conversion indicate that he had knowledge of firearms, that he purchased deadly weapons in the past, and that had an admitted history of violence.
This is the same reason the NSA is not able to hide behind the state secrets clause for programs that are already public.
I hope this guys wins a lot of money in a wrongful termination suit. I would hope that this also results in the termination of the person abusing their position to terminate this guy.
People should absolutely never be punished when they are aiding justice, after all that is the responsibility of the prosecutor. A prosecutor should only be seeking a conviction for people they have every reason to believe is actually guilty. Padding your prosecutorial résumé by getting a win at the cost of justice should be a career ending move for a prosecutor. It's no different than a doctor breaking the hippocratic oath.
> Concerned that attorneys did not have all the information they needed to prepare the case, he said, he reported his concerns to a State Attorney's Office investigator and later to prosecutor Bernie de la Rionda.
Ie, before contacting the defense through a lawyer, he talked to the prosecutor in charge of the case as well as an investigator with oversight of the attorney's office. Maybe he should have discussed the matter with the attorney general directly after these first two attempts, but his disclosure seems a little more reasonable knowing that he seemed to make an early effort at following the "chain of command."
As a side note, this article was fairly confusing for me. I had to read key passages several times and I'm still uncertain of the basic sequence of events. Many useful hn comments on this post seem to be just clarifying what the article should have reported in plain language. Ugh.
When Kruidbos' discovery process found information that the defense hadn't found, he was concerned that he should turn it over to them.
Then he sought out a lawyer to parlay with the lawyers involved in the case, avoiding his office's chain of command.
Well, I think we'd need a lawyer to say what should have happened here-- Does anyone know whether the state is responsible for turning over everything they pull out of an image? Or is it enough to provide the image to the defense?
- both sides had an extremely hard to parse, near unintelligible raw source file (data dump from the phone)
- the prosecutor's office had purchased a software package that could turn this raw source file into a much more easily readable report
- the prosecutor's office didn't think that the defense would pay the several thousands of dollars for the same software, in order to generate the same report
- the prosecutor's office provided only the raw source file and declined to provide any of the auto-generated reports which were meant to extract data from, organize and allow for easier analysis of that source file
- the IT guy knew this and was afraid that in the future, someone could claim he acted in negligence
- unbeknownst to the IT guy, the defense had indeed purchased other 3rd party software and successfully analyzed the entire source file
- the prosecutor hinted that the IT guy's testimony is him getting even for being the (unconfirmed) target of a leak investigation earlier in 2012
So does the prosecutor need to turn over the software-generated report to the defense? Or only the raw source files which powered the software? That's the question and I am unqualified to answer. But if it's the former and not the latter then the prosecutor messed up and was caught red handed.
I find it a little disturbing that the choice of software, and particularly the cost of it, can mean the difference between going to prison or not.
In this case, the undiscovered files included someone with a "black hand" holding a gun, text messages related to acquiring a gun, and some kind of marijuana product. None of those are relevant to the case, but do trigger prejudice or emotional responses, so it's probably good that they were left out.
In another case, those might be pictures of a murder victim or some other critical evidence (of either guilt or innocence). It seems pretty unfair that accused with a public defender doesn't generally have access to this.
If prosecutors want to paint a personal portrait of someone for the sympathy of the jurors, stuff like this should absolutely be included by the defense. In fact, I'd say it's their legal obligation to do everything in their power to have it presented.
I don't know what media you saw when this case started, but Travyon was described as a young adult, not a young child. Further he was merely buying candy and going home when he was stalked by Zimmerman, doing nothing that should trigger suspicion or aggression.
> If prosecutors want to paint a personal portrait of someone for the sympathy of the jurors, stuff like this should absolutely be included by the defense.
The extra photos from the cell phone are entirely irrelevant to the facts of the case and they should not be presented to the court as though they were. The defense wanted to include those photos to paint a portrait of a scary black man to a group of white women in the jurors box.
"Stalked" is pretty aggressive language, and according to GZ, his initial suspicion was just related to him not knowing who this person was (he knew most of the residents) walking around at night, in the dark, in the rain, near the houses. I think that's a pretty reasonable case for someone to feel suspicious.
And to re-iterate, when prosecutors are trying to paint a portrait of childish innocence, I think it's perfectly acceptable to introduce evidence to the contrary. They're irrelevant if we don't try to elicit sympathy from the jury, but that's not how the prosecution handled things.
Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.
Jumping the chain of command is never a good idea. At least send your boss an email (and BCC your gmail) to prove that you tried to go through official channels.
“I consulted an attorney, which is my right,” he said. “I had concerns about what I had seen at work, and this was just how it ended up playing out.”
Now because of due process (there's no actual evidence that his boss wouldn't have actually done the right thing, the employee just assumed) the boss will still have her job and be in position to act contrary to the interests of justice in the future.
And at this point his management has a reason to remove him from the job. Maybe he can fight it as a wrongful termination, but for now he's out of a job. I hope he gets his job back, but saying that your boss is corrupt is reason enough to give your boss enough rope to hang themselves IMHO.
A specious argument. If someone raised concerns that were then ignored, or had had past experience of that kind, it would be entirely appropriate to consult an attorney. On the other hand, the notion that it would have been held against him as an employee of the state is (I think, IANAL) BS. Raising the issue with his supervisors would have made it their problem; it's attorneys who bear the responsibility for discovery compliance, not the lab staff who do the actual forensic work.
Exposing your dangerous intentions to report potentially illegal behavior too early could mean inadequate time to prepare for repercussions.
He said he asked [his lawyer] for legal advice because he was concerned he could face “legal exposure” if the cellphone report wasn’t turned over to the defense before the trial started.
He said he did not feel comfortable posing that question to anyone within the office because the State Attorney’s Office had just conducted an in-house probe of whether someone was leaking personnel information."
Making someone look bad when it is deserved and when it is not deserved are two very different circumstances.
I would hope that any attorney that acts without ethics should be investigated and removed. If the system is not good enough to self-police itself, then we have a problem.
Could he have instead gone to the state bar to raise his concerns? Is there an equivalent of a Dept of Internal Affairs that investigates prosecutorial misconduct?
So it is very possible, even likely that the defense obtained the same data themselves.