Martin Zale was rail-roaded by the Court, the prosecutor, and the press. His constitutional rights were violated. The press was one-sided and the jury pool was tainted. Early in the case, the press was provided with a family photograph of Marty; however, the Livingston Daily and most other news outlets refused to run the image of a friendly and approachable Marty.
The media chose to run the booking photo; a shocking image that would discourage empathy with this man, who had yet to have a trial, and should have been considered ‘innocent until proven guilty.’ Everyone in a mugshot looks ‘guilty.’ Everyone in a mugshot looks like a ‘criminal.’ It is a perception that is hard to argue.
Marty was in shock. His expression was dazed and confused after the vicious attack by Derek Flemming. Experts say it would take weeks or longer to overcome the trauma of an attack.
The legitimate, professional journalists with integrity ran the family image of Marty. The Livingston Daily chose not to. Repeatedly. This image of Marty was no doubt indelibly planted into the public’s mind.
Instructional errors which directly affect a defendant's theory of defense can infringe on a defendant's Due Process right to present a defense. The jury instruction M Crim JI 7.16a was an instruction directly on point with Mr. Zale' s defense, further, it creates a presumption the jurors "must" accept, if they find the relevant facts. M Crim JI 7.18 is an instruction that was unwarranted by the testimony in this case, and suggested to the jury that there was evidence presented that Mr. Zale was an aggressor, particularly when the Court failed to elect between deadly for or deadly or dangerous weapon, presumably because neither existed in this record. Mr. Zale asserts that each of these errors infringed on his right to present a defense, resulting in denial of his right to Due Process and a fair trial before a properly instructed jury, and may have been outcome determinative.
Mr. Zale seeks to have reviewed on appeal whether he was denied Due Process and a fair trial due to Prosecutorial misconduct or error. Martin Zale asserts that the prosecutors "impeachment" of witnesses was clear error affecting his substantial rights. The only person who was able to testify about what happened in the window of the cab of his truck was Mr. Zale. Both sides offered witnesses to testify about past episode of Mr. Zale and Mr. Flemming. The witnesses were offered to show Mr. Flemming's temperament, and the effect of the testimony was diminished, if not totally extinguished by irrelevant, inadmissible character assassination by the Prosecutor. The error was compounded by the ineffective assistance of Defense Counsel in not objecting, and not requesting a curative instruction. The testimony of Kyle Mead, whose testimony was stricken without objection by Defense Counsel, improperly, as argued below and incorporated herein by reference. (T 5-12-2015, p 65-68.) He described similar threatening behavior by Mr. Flemming on another occasion, where he became angry while driving, stepped out of his vehicle to quickly approach another vehicle and reach for the door handle. (T 5-12-2015, p 55-61.) This testimony is so similar to what happened on September 2, 2014, that it directly supports Mr. Zale's version of the events in the present case, and supports his claim of self-defense.
While the Prosecutor paraded many witnesses before the jury, to say they did not see Mr. Flemming punch Mr. Zale, most of the witnesses acknowledged that they were at least momentarily distracted, or had their view blocked, during at least part of the incident. Even Mrs. Flemming admitted that she could not see the drivers window of Mr. Zale's vehicle, where all the relevant action occurred. The witnesses differed about what Mr. Flemming was doing with his
hands, whether he was touching the truck, whether he had a fist or was holding something in his hand. Most witnesses said his hands were gesturing and/or were in the air. The testimony supports the inference that the shooting was preceded by a violent situation during which the victim was aggressive and the defendant was conciliatory.
Although the Prosecutor elicited testimony that many witnesses "did not see" certain things, like Mr. Flemming hitting the truck, punching, or reaching in the truck, this is not the same as testimony that it did not happen. Mrs. Flemming did say these things did not happen, but did admit that she could not see the drivers side window of the Dodge Ram, which is where these actions occurred. At least two witnesses testified that they saw redness and swelling on Mr. Zale's face, David Clevinger and Don Serman, suggesting that he had just been punched. (T 5-8-2015, P 243-246, 247, 250, 303.) Another witness said he saw Derek Flemming strike Martin Zale's window but the facts prove that at that moment when Flemming was at the window, the window was down. The witness really saw Flemming strike Zale in the face.
An Expert Witness Report of Art Joslin & Associates concludes that Mr. Zale acted in self defense.
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Martin Zale's constitutional rights were violated multiple times. The prosecutor continued to impeach character witnesses that would testify against Derek Flemming. It was improper, the Prosecutor knew or should have known it was improper, and neither the Court nor Defense Counsel did anything to correct the situation. The prosecutor intended to convict Martin Zale, not seek the truth and justice.
The Court gave improper jury instructions and made other errors that infringed on Martin Zale's right to present a defense, resulting in denial of his rights to Due Process and a fair trial, and affecting the fairness, integrity, and public reputation of judicial proceedings.