Nelson also ordered the redaction of the apparently inadvertent release of Martin family' old address from a court record filed by defense. In addition, she ordered the amount of the settlement by the Retreat at Twin Lakes homeowners association with the Martin family to remain under seal unless it becomes relevant at the trial.
O'Mara spoke to Nelson about the state's response to the defense's requests for sanctions against the state for "discovery violation" and the costs and fees from for delaying videotaped depositions of Witness 8 and Martin family members. O'Mara said the defense had informed the state weeks earlier they intended to videotape the sworn statements.
After a five-hour delay, Nelson had allowed the taping to commence, but the defense wants nearly $5,000 from the state for the fees and costs it attributes to the state’s refusal to let the deposition proceed on time and on tape.
O'Mara said the state's response, which questioned O'Mara's professionalism and ethics, was "unethical, inappropriate and scurrilous." He called the state's response a "horrific attack" that could undermine the result of the case and asked it to be stricken from records.
Nelson responded saying that in the state's response she found things the "court wishes were not the in court file," and allowed O'Mara to seek strike of portions. O'Mara has five days to tell the state portions he wants redacted from its response to his motions for sanctions.
De la Rionda said the prosecution stands by their responses.
O'Mara then called attorney Don West to the stand to discuss sanctions sought by the defense against the state attorney’s office for concealing information about Witness 8, the young woman Martin was talking to on the phone moments before he was shot to death.
West said the state hid that Martin's family and lawyers were there during the Witness 8 audio interview.
West claimed the state concealed Witness 8's age--which was first reported by Crump to be 16 but was later determined to be 18. The defense also said Witness 8 school and mutual friends with Martin was concealed by the state, along with Witness 8 "lying" about needing hospitalization after Martin died and said the state knew in August 2012.
The state has said it is unfair to fine the state and the issues the defense has aren't discovery violations. The state said the defense could have deposed Witness 8 long before they did.
De la Rionda also said the defense has caused delays and that the state could claim that they violated discovery issues.
Nelson interrupted, saying that to make a ruling on the discovery sanctions it must be determined defense experienced procedural prejudice by violations by any alleged discovery violations.
"We can't get ready for trial," O'Mara responded, asking Nelson to tell the state to stop withholding information from the defense.
"The things you are alleging as discovery violations have been cured," Nelson said, because the defense now has the information from the state they sought.
De la Rionda said the state "forgot" to reveal the Witness 8 situation.
"I have brought extensive discovery on this case to the best I can," de la Rionda said.
"The court does not make a finding that there was a discovery violation," Nelson said.
As for the defense seeking monetary damages, the court will decide on that issue at another hearing on Tuesday, May 28, along with the final motion on sanctions for the Miami videos.
Immunity hearing at trial?
If an immunity hearing were conducted at the same time as the trial, the judge would decide at the end of all evidence and argument whether the defense has proved by a preponderance of the evidence (the slimmest of burdens) that Zimmerman killed Trayvon Martin because he was in reasonable fear of death or great bodily harm.
If immunity is not conferred by the judge, the six-person jury would decide -- by the most burdensome beyond-a-reasonable-doubt standard -- whether the state has proved Zimmerman committed second degree murder, or a lesser crime, including manslaughter.
In Florida, second-degree murder means a killing done by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. The act must be done from ill will, hatred, spite, or an evil intent, and it must indicate an indifference to human life.
But regardless of whether he seeks immunity before or during the trial, Zimmerman will still try to show jurors he acted in self defense. The judge will instruct the jury that to find Zimmerman guilty, they have to believe the state disproved the self-defense theory, ruling out any “reasonable hypothesis of innocence.”
That does not mean the state has to conclusively rebut every possible variation of Zimmerman’s self-defense claim. A conviction would stand as long as the state introduced competent evidence that is inconsistent with Zimmerman’s story.
In other cases, inconsistencies in a defendant’s statements to police and others has been enough for appellate courts to uphold a second-degree murder conviction where defendants claim self defense.