Diary of a Successful Loser posted the following comment last night after I went to bed. It raises several important issues, so I have seized it as an opportunity for yet another teaching moment.
” At times I get the feelings that O’Mara really does not believe in GZ’s innocence. He mentioned being accused of digging up stuff on Trayvon and countered that with GZ’s Constitutional rights to have a lawyer try his best. I have yet to hear O’Mara say that he really and honestly believes in GZ.”
You will rarely hear a lawyer say that on behalf of any client because lawyers are not supposed to judge their clients or vouch for them. They have a duty to represent each client zealously to the best of their ability, whether the client is innocent or guilty.
Absence of vouching for the innocence of a client should never be interpreted as evidence that the lawyer believes his client is guilty.
If I were representing Zimmerman, I would have asked for the same stuff he’s asking for.
Look at it this way.
Assume GZ were convicted of murder 2 and O’Mara had not presented any character evidence that TM was kown to be an MMA-style fighter and aggressive bully who picked fights. As I have stated elsewhere, such character evidence would have been admissible regarding who was the aggressor.
Let’s put aside and forget for the moment that introducing evidence of that pertinent character trait would open the door to allow the State to present evidence that Zimmerman was an aggressive bully.
Further assume that O’Mara had not subpoenaed TM’s school records and they did contain evidence that TM was an MMA-style fighter and aggressive bully who picked fights. I do not believe this is true, but let’s assume that it is for purposes of this teaching moment.
Zimmerman would have a great ineffective assistance of counsel argument against O’Mara that could result in the case being reversed and remanded for a new trial.
The Sixth Amendment established the right to effective assistance of counsel. The SCOTUS defined what constitutes effective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984).
The Strickland test is a two-part test that basically establishes a minimal standard of performance that a lawyer must provide to comply with the Effective-Assistance-of-Counsel Clause of the Sixth Amendment. If a lawyer’s level of performance (1) falls below this minimal standard and (2) the lawyer’s error is so deficient as to undermine confidence in the outcome, a reviewing court must undo the damage. If the outcome was a guilty verdict by a jury, the case must be reversed and remanded for a new trial.
Wikipedia has a good summary:
The Supreme Court began its decision with the idea that the Sixth Amendment right to counsel “exists, and is needed, in order to protect the fundamental right to a fair trial.” A fair trial is one in which “evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Criminal defendants require counsel’s skill and knowledge in order to be able to successfully rebuff the State’s attempt to imprison or execute them. Accordingly, the Court has ruled that counsel must be appointed for criminal defendants if they cannot afford to hire their own counsel. But the fact that “a person who happens to be a lawyer is present at trial alongside the accused… is not enough to satisfy the constitutional command.” Counsel must play the role in the adversarial system that allows the system to produce just results. Hence, the right to counsel is the right to the effective assistance of counsel.
A claim that counsel was ineffective, then, has two components. First, the defendant must show that counsel’s performance was “deficient,” such that counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Second, this deficient performance must be so serious as to deprive the defendant of a fair trial. Without these two showings, “it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”
In order to show that counsel’s performance was “deficient,” the defendant must show that it fell below an “objective standard of reasonableness.” The legal profession is capable of maintaining standards that justify the law’s presumption that counsel ordinarily serves his function in the adversary system. This includes such basic duties as assisting the defendant and showing him undivided loyalty by representing him unburdened by any conflict of interest. Counsel should advocate the defendant’s case, consult with the defendant on the important decisions and keep him informed of important developments in the course of the prosecution. But these basic duties do not serve as a “checklist” for counsel, for “no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Counsel must have “wide latitude” to make “reasonable tactical decisions,” lest the requirements for constitutionally effective assistance distract counsel from “the overriding mission of vigorous advocacy of the defendant’s cause.” Judges who evaluate ineffective assistance claims should, in turn, be highly deferential to counsel’s decisions and avoid scrutinizing them in hindsight. Harsh scrutiny would encourage the proliferation of ineffective assistance claims and “dampen the ardor and impair the independence of defense counsel.”
A criminal defense attorney has a duty to investigate a case. This duty usually includes hiring an investigator to locate and interview witnesses. In a case like this, it also includes hiring consulting experts in police procedures and forensics to review what the police did and to evaluate the procedures used and the results obtained by crime lab personnel testing evidence in the case.
More pertinent to our discussion, the duty to investigate includes subpoenaing records that may contain relevant information or that might reasonably be expected to lead to the discovery of relevant information, unless those records have been provided in discovery.
O’Mara’s decision to subpoena school records and social media accounts (Facebook and Twitter) is something I would have done and I expect every competent criminal defense lawyer also would have done.
Whether there is anything relevant and admissible in any of those records remains to be seen.
My concern today is that O’Mara might “inadvertently” publish the records on his website, whether they contain relevant information or not. The records are protected by privacy statutes because he is a juvenile, they contain private information about him and they are supposed to remain private, even after they are turned over to O’Mara. He certainly knows he should not publish them on his website or release them to the media, and he would have some serious ‘splainin’ to do, if he does. The my-secretary-did-it card is practically unavailable because the State has already played it.
Recall that the State published Zimmerman’s woeful junior college records in violation of his right to privacy and quickly acknowledged and apologized for the “clerical mistake.”
The apology did not unring the bell, of course, and now the world knows Zimmerman was a failing student.
Inexplicably adding to Zimmerman’s woes, O’Mara failed to make a sufficiently specific and timely objection to the State’s release of W9′s statements claiming that Zimmerman had molested her for a 10-year period beginning when she was 6-years-old and he was 8-years-old.
In my professional opinion, O’Mara’s failure, although obviously unintentional, was a clear violation of the objective standard of care that a lawyer should provide to his client under Strickland v. Washington. Whether it turns out to be material to the outcome of this case remains to be seen.
If Zimmerman is convicted by a jury and a reviewing court decides that O’Mara’s error materially affected the outcome of the trial, the conviction would be reversed and the case remanded for a new trial.
Since I identified and commented on his miscue at the time, I think it’s only fair that I approve of his use of subpoenas, as it is something I would have done.
To be clear, I do not believe he will find the information that he is looking for. Nevertheless, I believe he is entitled to look for it.
I hope this clarifies the legal issues regarding the subpoenas.