The First Commandment of Criminal Defense is thou canst not create a silk purse out of a sow’s ear, no matter how good you are. Some cases are dead-bang losers and you must be able to identify and dispose of them, if at all possible, without going to trial. That usually involves a plea bargain and a guilty plea.
There are two kind of plea bargains: charge bargains where charges are dropped or reduced in exchange for a guilty plea, and sentencing bargains where the prosecutor agrees to recommend a reduced sentence in exchange for a guilty plea.
You should be prepared to take a case to trial, if the prosecutor is unwilling to give your client a benefit in exchange for pleading guilty. The prosecutor must know that you are willing to do that or you will not get the best deal for your client.
The Second Commandment is thou shalt not fail to use your independent judgment and act in the best interests of your client. The relationship must be a professional one, not a codependent one. It is not a friendship of equals.
Your client hired you, or you were appointed to represent him, because you are a professional with the requisite knowledge and skill to do the job. Because of that knowledge and skill, which your client does not have, and your duty to use your independent judgment, you must be the boss in the relationship.
I can think of no better example of a difficult and self-destructive client than George Zimmerman. Four words illustrate the disaster that can happen when the lawyer permits the client to make the decisions:
The Shawn Hannity Interview.
If you cannot control your client, thou shalt withdraw from the case.
The Third Commandment is thou shalt not fail to do everything within your power to silence your client because the prosecution can use everything he says about the case against him.
If you cannot shut him up, thou shalt withdraw from the case.
The Fourth Commandment is thou shalt not fail to keep your client well informed about the facts and legal issues in the case. Just because you are the boss does not mean you are God. Keeping your client well informed and up to date is the best way to build trust and manage the attorney-client relationship.
The Fifth Commandment is thou shalt not assume that your client is telling you the truth. He might be and he might not be. Whether he is or not is not your responsibility or duty to determine. Nevertheless, consistent with your duties to keep your client informed and to be diligent and thorough, you do have a duty to inform your client about any contradictions and inconsistencies between his statement(s) and the evidence.
The Sixth Commandment is thou shalt not try your case in the court of public opinion. Nothing good can result, if you do. Two words summarize this rule beautifully:
The Seventh Commandment is thou shalt not ask a question on cross examination unless you know the answer.
The Eighth Commandment is thou shalt never ask a question on cross examination that cannot be answered with a “yes” or a “no.”
The Ninth Commandment is thou shalt not encourage your client to testify unless it is absolutely necessary. Nothing good can come of it. Three words summarize this rule:
George Michael Zimmerman
The Tenth Commandment is thou shalt know forensic science well enough to spot issues, ask intelligent questions and choose qualified and credible expert witnesses.
The Eleventh Commandment is thou shalt not rely on the police to investigate your case. You must always work with an investigator.
The Twelfth Commandment is thou shalt always file a discovery motion requesting a prosecution witness list with a list of prior convictions of record for each witness and disclosure of any agreements with any witness to confer a benefit of any kind on the witness in exchange for the cooperation and/or testimony of the witness; all police investigation reports; witness statements; forensic reports and bench notes; your client’s statements, together with a list of all searches and seizures and an inventory of all property seized; and any exculpatory evidence, including impeachment evidence, in the possession, custody or control of the police and prosecution.
The defense has the burden of proving self-defense by a preponderance of the evidence at the immunity hearing. Therefore, it will go first.
Zimmerman’s statements to police and others are inadmissible hearsay, unless they are not offered to prove the truth of the matters asserted in the statements. Therefore, Zimmerman would have to testify to have any chance to win the immunity hearing.
If he testifies, however, the prosecution will have an opportunity to confront him with all of his prior inconsistent statements. That might take several days and could get downright ugly eliminating any chance of winning the immunity hearing. His predicament can be summarized in nine words.
Damned if you do and damned if you don’t
O’Mara might want to consider waiving the hearing, since he cannot win it and can only further damage Zimmerman’s credibility and standing in the court of public opinion, if he goes forward with it.
The burden of proof will switch back to the prosecution at the trial where it will have to prove beyond a reasonable doubt that Zimmerman did not reasonably fear imminent death or serious injury when he shot and killed Trayvon Martin.
I italicized “reasonably” because the test is objective, not subjective. That is, he must not only believe he is in imminent danger of death or serious injury, his belief must be reasonable.
Satisfying that burden should be easy since Zimmerman admitted to Serino that he had Martin under control with a wrist lock before he pulled his gun and shot him. He also admitted to the investigator who administered the voice stress test that, after he grabbed his gun, he extended his arm beyond his left hand to avoid shooting it, aimed, and pulled the trigger.
Assuming for the sake of argument that he believed he was in imminent danger of suffering death or serious injury, and I do not think the evidence supports that conclusion, his own words establish that his belief was not reasonable.
Even if Martin punched him repeatedly in the head with his fists and then he gripped Zimmerman’s head and slammed it repeatedly against the cement sidewalk, Zimmerman was no longer in any danger because he had Martin under control first with the wrist lock and then at gunpoint. Although his injuries bled copiously, they were not serious and he did not have to shoot Martin, much less kill him.
Moreover, he knew the police were en route and would arrive within moments, which they did. The evincing-a-depraved-mind-indifferent-to-human-life element is established by the unreasonable and unnecessary shooting.
There is no doubt that he intended to kill Martin because, as he said, he aimed and the shot went direct from front to back exploding the right ventricle and collapsing both lungs.
In the final analysis, Zimmerman’s own words convict him and all of the hullabaloo regarding whether Martin was a Super Bad Black Gangsta From Hell or the Second Coming of Jesus was totally irrelevant.
The truth is Martin was a good kid minding his own business that night.
The evidence will establish beyond a reasonable that the only thug out and about that rainy night in February was a burly armed vigilante who fancied himself to be the Sheriff at the Retreat.
His name is George Michael Zimmerman.
I will now close this essay with the Thirteenth Commandment:
Thou shalt not play the race card or trash the character of the victim of a homicide or other violent crime, such as a rape or an assault, when the victim is a child, in order to escape responsibility for committing the crime. The best example I can think of consists of three words:
George Michael Zimmerman
So let it be written
So let it be done.
(H/T to Logi for pointing out Zimmerman’s statement to Serino admitting that he had wrist control of Martin before pulling his gun and shooting him)