Eye witness testimony is known to be unreliable, yet the prosecutor continued to bring so-called witnesses to the trial that 'did not see anything.' It is interesting how many witnesses insisted that they were the first car stopped at the traffic light across the street from the incident.
Mr. Zale's defense in this case was self-defense. He testified to this, but there were no actual witnesses to what happened in the drivers window of the truck. Most witnesses had a distraction, or could not see for a period of time, or could not see the window or in the window.
Derek Flemming started screwing with Martin Zale by braking his vehicle to provoke Martin Zale, when Zale was first behind Flemming. The court should not have given instruction to the jury suggesting that Martin Zale was the initial road rage aggressor, there was no evidence to support that claim.
The police and prosecutor do not want you to know that Derek Flemming was inside Martin Zale's truck, trying to remove Zale from the truck and beat him. So, they did not process the tooth inside the truck and they did not process the inside of the truck for Flemming's prints or DNA.
At a pretrial motion hearing, the Court ruled that if self-defense became an issue, MRE 404(a), character evidence will be allowed. (T 2-13-2015, P 11-14.) However, irrelevant evidence is not admissible. MRE 402. "Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401.
The prosecutor attacked character witnesses that gave testimony of how Derek Flemming instigated violent confrontations with them. Clearly unrelated arrests, drinking, domestic violence and convictions of character witnesses for Martin Zale were more prejudicial than probative, and none of it was relevant. MRE 403. Further, they were not proper impeachment. MRE 609.
The irrelevant evidence of character witnesses that spoke poorly about Derek Flemming's character was improper impeachment. None of the crimes named for these character witnesses involved theft or dishonesty. MRE 609. There was no connection to the shooting on September 2, 2014. MRE 401. This was all to portray Martin Zale's witnesses (the witnesses against Derek Flemming) in a bad light before the jury. 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 jury was not allowed to know the true provocative and confrontational nature of Derek Flemming.
Derek Flemming would get in a fight almost everywhere he went. He fought with his family according to neighbors. He threatened to kill a deputy and Enbridge workers for 'trespassing' while the workers had a legal right to be on the easement across Flemming's property. He fought with postal workers, workers at Costco and had confrontations with other bidders at farm auctions. He bullied and assaulted his neighbor's 10 year old child, fought with school bus drivers, and was banned from a food chain where he bought food for the swinger's parties he and Amy sponsored in their home. Derek confronted his neighbors with hostile vulgarities when his neighbors were on their own adjacent property walking a dog. He was very protective of his property because of the swinger parties the Flemmings hosted at their home. He and wife Amy wanted to offer a private environment for their 'paying' guests. The Flemmings did remove their children from the home during these parties (thank God), but would have to hurry to get the home cleaned before the children came home from their grandparents, who babysat the kids during what the kids called 'adult night.' The Flemmings ran their sex club income through another business they owned so as not to get in trouble with the IRS and for the privacy of the swingers. The Flemmings lied about the wall of lockers they had in the basement to other relatives who inquired about the lockers. The relatives were told the lockers were for storing a line of clothing the Flemmings were selling online. The Flemmings kept sex costumes in the lockers for their clientele. Verification of these facts can be made to bonified news media that request them from us.
Martin Zale asserts that the "impeachment" of witnesses against Derek Flemming 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 episodes 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.
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.)
There was also a tooth found on the floor board in Mr. Zale's vehicle, which was collected as evidence, but not tested. During the autopsy, the coroner learned that Mr. Flemming was missing a tooth. (T 5-7-2015, P 54-58.) The interior of the Dodge was not tested for gunshot residue. (T 5-7-2015, P 59.)
The detective in charge does not know if the Dodge Ram was left out in inclement weather after it was
brought back to the department. "Eventually" the exterior of the driver's side door was processed. They were looking for prints or DNA evidence. They were able to "take some lifts", and collect a "small fiber hair". The hair was tested, but there was no conclusion, nor was there any conclusions regarding the DNA testing. A decision was made not to process the inside of the vehicle, including the inside of the drivers door. (T 5-7-2015, P 69-70.)