Zimmerman Case: Prosecutors fire their IT guy for pointing out withheld evidence

[Ned Hamford]

http://www.abajournal.com/news/article/fired_it_director_plans_whistleblower_suit_against_zimmerman_prosecutors_la/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Blah blah blah... "complicity with the defense."  I am basically opposed to withholding any evidence from the defense.  Irrelevant or inadmissible; that is the purpose of pretrial hearings and stipulations.  Given how far the deck is stacked for the prosecution I think any shenanigans a moral failing if not outright misconduct or illegal. 

Material in question was apparently pictures on Martin's cell phone featuring drug paraphernalia and a gun; which was deemed inadmissible by irrelevance as it had nothing to do with the night in question.  Tho I do think, while not admissible for itself, it would be excellent rebuttal material for any testimony to what a great kid he was ect.  With the many complaints of the dismissal letter, one is that he didn't take the material that concerned him to any prosecutor is a scenario I find kinda perverse.  As much love as I have for IT folks (and even given his position as a former prosecutor) since when the heck is the IT guy part of the team?  Here are the files, any Qs he is there, but as actual evidence review and strategy, that seems a mighty far leap from his job description.

From personal experience, I've always been amazed at how frankly sloppy offices are with their tech arrangements.  While often a good system has been purchased, the human factor of older lawyers (and their bosses) who have no idea how anything works and other tech illiterates (mostly willful) breaks down the system.  When you combine that with the fact the tech guys are often gov service tech guys with all the negative connotations government workers have earned.... Many offices are a nightmare. 

From reading the dismissal letter there does seem to be a lot going one with this particular employee.  Valid firing or persecution of a whistle-blower or other honest man outsider scenario, I've no idea.  But given the office attitude we have witnessed, I'm not giving them much benefit of the doubt. 

[Levant]

It is amazing how often (virtually always) system admins have access to all data or files in a company.  There's no reason for it to be that way.  You can easily take their access away to data folders with no loss.  If you need their help later,  you do it in an auditable fashion.  Turn on full auditing, give them monitored access to folders, remove the access then their help is needed.

It's extra work but only a little.  Almost no company or government entity does that little bit of extra work.

[Hawkmoon]

Material in question was apparently pictures on Martin's cell phone featuring drug paraphernalia and a gun; which was deemed inadmissible by irrelevance as it had nothing to do with the night in question.  Tho I do think, while not admissible for itself, it would be excellent rebuttal material for any testimony to what a great kid he was ect.  With the many complaints of the dismissal letter, one is that he didn't take the material that concerned him to any prosecutor is a scenario I find kinda perverse.  As much love as I have for IT folks (and even given his position as a former prosecutor) since when the heck is the IT guy part of the team?  Here are the files, any Qs he is there, but as actual evidence review and strategy, that seems a mighty far leap from his job description.

My understanding is that he DID take the material to the prosecutors. He gave them a detailed report of everything he was able to retrieve from the Martin kid's cell phone ... and then he later learned that the report of that material provided to the defense team was only about half of the total material. The prosecution was legally required to turn over [copies of] ALL evidence to the defense. From there, the defense could decide if they wanted to use it, and then the judge would decide whether or not the defense (or the prosecution) would be allowed to use it. The prosecution doesn't get to parse the evidence beforehand and only turn over that parts they choose to give up.

Since the verdict I've been doing a bit of reading about Angela Corey. Apparently, she is not a nice person, and withholding  potentially exculpatory evidence from defense attorneys is just a normal part of her schtick.

[T.O.M.]

Wonder if Ms. Corey is friend of Nancy Grace...seem to have been cut from the same cloth.

One of my biggest irrational fears when I was prosecuting was that I would accidentally not turn over evidence, and get in deep as a  result.  It's not that hard...open file, copy everything, turn it over.  Find new evidence, repeat the process.  Funny how well that works...

[Ned Hamford]

The local office has an open file policy for sharing things with the Defense.  I don't rightly understand how other offices don't do this and it is alright. 

[MechAg94]

The local office has an open file policy for sharing things with the Defense.  I don't rightly understand how other offices don't do this and it is alright. 

Is this something the local Bar is supposed to address?

[T.O.M.]

It's a policy thing developed by the elected prosecutor.  All they are  required to do is comply with discovery and turn over Brady material (anything that may be exculpatory).  So, there's no way to force an open file policy, but it's a smart thing to do.  In my experience, if the case is charged appropriately (what actually occurred and not overcharged for plea bargain leverage), and you open the file to the defense, you have fewer trials because the defense attorney can see when the case is an easy win forbthe prosecution, and advise the client accordingly.

[Hawkmoon]

It's a policy thing developed by the elected prosecutor.  All they are  required to do is comply with discovery and turn over Brady material (anything that may be exculpatory).  So, there's no way to force an open file policy, but it's a smart thing to do.  In my experience, if the case is charged appropriately (what actually occurred and not overcharged for plea bargain leverage), and you open the file to the defense, you have fewer trials because the defense attorney can see when the case is an easy win forbthe prosecution, and advise the client accordingly.

Of course, the only cases I know anything about are those that have made it into the news. Based on that admittedly limited and tainted subset, I have the impression that nothing has been "charged appropriately" for at least the last ten to fifteen years. Prosecutors always seem to overcharge.

Is appropriate charges something that are found in Ohio but not in the rest of the United States? I don't think a prosecutor around here would know an appropriate charge if it stood in front of him and kicked him in the [shins].

On the other hand, not long ago a defense attorney in a vehicular homicide case convinced a judge and jury that a light I KNOW is a yellow flasher after 10:00 pm. was a red light that the decedents should have stopped at before initiating a left turn. IMHO that's what we call a "lie," and I think it should be grounds for some sort of sanction.

[Levant]

Wonder if Ms. Corey is friend of Nancy Grace...seem to have been cut from the same cloth.

One of my biggest irrational fears when I was prosecuting was that I would accidentally not turn over evidence, and get in deep as a  result.  It's not that hard...open file, copy everything, turn it over.  Find new evidence, repeat the process.  Funny how well that works...

One would hope that the biggest fear a prosecutor would have in the performance of their job is a miscarriage of justice by convicting an innocent man.  In spite of the oath, we find it over and over again where judges and prosecutors conspire to misrepresent, create, or hide evidence in order to get a conviction.  And nothing ever happens to them when they're caught.

[T.O.M.]

Of course, the only cases I know anything about are those that have made it into the news. Based on that admittedly limited and tainted subset, I have the impression that nothing has been "charged appropriately" for at least the last ten to fifteen years. Prosecutors always seem to overcharge.

Is appropriate charges something that are found in Ohio but not in the rest of the United States? I don't think a prosecutor around here would know an appropriate charge if it stood in front of him and kicked him in the [shins].

No, not an Ohio thing.  Plenty of prosecutors who overcharge cases looking for plea bargains in Ohio to go around.  When I started as a prosecutor, I was fortunate enough to work for a man who was locked into the job.  He'd won enough and avoided any controversy to dodge real political challenges for the position.  As such, he didn't care about winning percentages.  He cared about the right thing.  His policy was simple...charge the crime that was committed, open file discovery, no plea bargaining.  He was also particular about grand jury...present the actual facts, and not just the facts to secure an indictment.  He wanted the grand jury to point out where cases were week, or where no indictment should be handed down.

Unfortunately, with the political machine being what it is, prosecutors have to worry about winning, and gaining publicity in the process.  So, with winning being the goal, and doing so in as highly publicized a manner as possible, cases get overcharged and then reduced during the plea bargain process.  Assistant prosecutors are often promoted and given pay raises not based on the quality of their work, but on their "batting average," meaning how many cases they resolve with a conviction.  This system encourages not only overcharging, but also charge stacking, meaning you don't just charge the crime, but any conceivable additional offense and violation you can stick on, to increase the odds of getting a conviction of some kind.

[T.O.M.]

One would hope that the biggest fear a prosecutor would have in the performance of their job is a miscarriage of justice by convicting an innocent man.  In spite of the oath, we find it over and over again where judges and prosecutors conspire to misrepresent, create, or hide evidence in order to get a conviction.  And nothing ever happens to them when they're caught.

Funny, in the 18 years I've worked in the system, I've yet to encounter a situation where a judge and prosecutor work together on anything more than a case of beer at a golf outing...

[roo_ster]

Funny, in the 18 years I've worked in the system, I've yet to encounter a situation where a judge and prosecutor work together on anything more than a case of beer at a golf outing...

Last time my wife served on a jury, the judge acted (in her observation) as an advocate for the prosecution.  Soured her and others on the jury, which was made of solid citizen types.  As a result, they discounted all prosecution evidence save that which was incontrovertible.  When you have such folk employing mini jury nullification, even if they have never heard of the term, you got problems.

[tokugawa]

"every cop is a criminal, all your sinners saints". 
 

[Scout26]

When I worked in the Provost Marshal's office every Thursday the JAG lawyers would come over and we'd go over case by case anything we thought might go to courts martial.  We also had a cheat sheet gleaned from the blotter of all the DWI's and Drunk and Stupids we expected to be handled by Article 15's.  That way when PVT Snuffy went to the JAG office after being read the Art. 15 by his commander, they'd already have the details.

The interesting thing was the Chief JAG officer had two rosters, one each Prosecution and Defense, and all the JAG were on each one.   If your name was at the  top of the roster for "Defense", you were defense for the next case.  Then your name went to bottom of the Prosecution Roster.   But we'd sit there and open each case file and go over everything with both JAG officers.   Sometimes they'd be defense and the next case, they'd be prosecution.  So they were constantly plying both sides.  I think it made them much better attorneys.

Plus it was fun to watch them go from "Put the MF against the wall and shoot him.", on one case to; "He was on his way to choir practice at the orphanage, right after he left the abandon pet shelter, when evil befell him." on the next.

One thing that always impressed me about the CID agents I worked with, they worked just as hard to eliminate someone as a suspect as they did to find out who did it.

Oh, and the "overcharging" thing.  Most it has to do with double jeopardy.   You have to charge them with everything the first time.   Apparently at some point in time prosecutors where charging people with X.  And then wouldn't get a conviction, so they'd go back and charge them with Y and Z (lesser charges) and try to get a conviction that way.   Now the courts  (at least the military ones) want to see all the charges up front, so there's only one trial on all the charges.

[Hawkmoon]

Unfortunately, with the political machine being what it is, prosecutors have to worry about winning, and gaining publicity in the process.  So, with winning being the goal, and doing so in as highly publicized a manner as possible, cases get overcharged and then reduced during the plea bargain process.  Assistant prosecutors are often promoted and given pay raises not based on the quality of their work, but on their "batting average," meaning how many cases they resolve with a conviction.  This system encourages not only overcharging, but also charge stacking, meaning you don't just charge the crime, but any conceivable additional offense and violation you can stick on, to increase the odds of getting a conviction of some kind.

The whole system is founded on that, these days. Even in non-criminal law, there are vast numbers of laws that are never used by the police as primary offenses, they're just pulled out if the cop is having a bad hair day and wants to pee in your coffee. When's the last time you saw a pickup or SUV pulled over and ticketed ONLY for having tires that stick out of the wheelwells too far? Or pickups or SUVs that are pulled over and ticketed ONLY because the suspension has been modified to raise the vehicle more than whatever your state's magic number is (my state the magic number is just 4 inches higher than factory configuration -- a cop who needs to make a quota could write a month's worth of tickets just cruising the parking lot of a large mall on a holiday sale day). Yakking on the cell phone while driving? Never EVER saw or heard of anyone pulled over for that -- it's only cited if the yakker causes an accident. Yet the whole point of these laws is purported to be to avoid accidents. If that's so, then why are we only writing the tickets AFTER the accidents?

I know the same applies in the criminal arena. My great-grandfather the law professor used to argue that laws that are not enforced are worse than no laws at al, because knowing that they can break laws with impunity teaches people contempt for laws in general. It isn't supposed to be a smorgasbord, where you pick and choose which laws you want to obey today.

[T.O.M.]

Hawk,  now that you mention it, it's epidemic in the entire legal system.  You look at the civil arena, and you'll see people claiming millions of dollars in damages, when the actual damages were far less.

[RoadKingLarry]

I know the same applies in the criminal arena. My great-grandfather the law professor used to argue that laws that are not enforced are worse than no laws at al, because knowing that they can break laws with impunity teaches people contempt for laws in general. It isn't supposed to be a smorgasbord, where you pick and choose which laws you want to obey today.
 

The flip side of that is the BS laws that don't need to exist at all, they also serve to cause people to disrespect laws in general.

[T.O.M.]

The flip side of that is the BS laws that don't need to exist at all, they also serve to cause people to disrespect laws in general.

I had a professor in law school who was a career prosecutor, good man, great ethics.  Anyways, he had a saying that bad facts make for bad laws.  We're seeing that in action these days.  Bad facts (Sandy Ridge school shooting) equals bad laws (Colorado anyone?)...