Zimmerman: The immunity hearing should not be combined with the trial

April 30, 2013

Tuesday, April 30, 2013

Good evening:

The immunity hearing should not be combined with the trial for the following reasons:

A defendant has a 5th Amendment right to remain silent throughout the trial. If the Court were to combine the trial with an immunity hearing, that would put pressure on the defendant to testify during the defense case.

Depending on how well the prosecution’s case-in-chief might have gone, the defense might be tempted after the prosecution rests to rest and not put on a defense. However, because the burden of proof in the immunity hearing is on the defense, the defendant would have to testify. This is a classic example of compelling a defendant to testify and possibly incriminate himself by doing so. The 5th Amendment expressly prohibits compelling a defendant to incriminate himself.

That would not be the case if the immunity hearing were held before trial. The defendant could testify in the immunity hearing without waiving his right to remain silent at the trial.

Another reason not to combine the two is that the order of presentation differs. The State goes first at trial, but the defense goes first in an immunity hearing. Strategy can change dramatically depending on whether a party has the burden of proof. Whether a party goes first or second will affect the evidence it will present, its choice of witnesses, and the order in which the witnesses will be called.

Finally, the purpose of an immunity hearing is to identify strong self-defense cases early on and to immunize those defendants from criminal and civil liability so that they do not have to endure the psychological and emotional wear and tear of living a life in limbo while possibly in custody for a year or more before trial. Saves the expense too for all concerned. Combining the immunity hearing with the trial cancels out all those advantages.

Finally, just because a defendant has a fundamental right to an immunity hearing does not mean that he cannot waive that right as the defendant did today.

500 people are going to be summoned to court for jury service in this case and it makes no sense to go to the time, trouble and expense to do that just because the defendant wants to wait and see how jury selection and the prosecution’s presentation of its case is going before he decides whether to seek immunity.

_________________________________________________

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred

595 Comments | Combining Immunity Hearing with the Trial, Defense Strategy, Fifth Amendment Right to Remain Silent, fogen, George Zimmerman | Tagged: , , , , | Permalink
Posted by masonblue

Probable cause in arrests, initial appearances, informations, and grand jury indictments

April 27, 2013

Saturday, April 27, 2013

I write today to clear up some confusion that I may have caused regarding the purpose of an initial appearance in a federal criminal case. I think I caused the problem by failing to mention that all federal court felony prosecutions must be by grand jury indictment. I cover a lot of basic material that most people do not know about our criminal justice system. This information will help you understand why Dzhokhar Tsarnaev’s initial appearance happened on Monday. I also provide basic information about grand juries, including when and why they were created. Finally, you will have a more thorough understanding of probable cause and its role in our criminal justice system.

In tomorrow’s post I will look ahead to Tuesday’s hearing in the Zimmerman case and express some choice words to describe the new low in sleaziness achieved by Mark O’Mara.

Do not confuse an initial appearance with an arraignment. An initial appearance is a judicial review of a complaint and affidavit for probable cause to determine whether the affidavit actually establishes probable cause or reasonable grounds to believe the defendant committed the crime(s) charged in the complaint. The defendant does not enter a plea at the initial appearance for the simple reason that he cannot be arraigned unless he has been indicted by a grand jury.

The Fifth Amendment provides in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

Many states, including Florida, permit prosecution by information. The Zimmerman case is a good example. Florida permits felony prosecution by information except in capital cases, which must be prosecuted by grand jury indictment. Therefore, State Attorney Angela Corey could have prosecuted the defendant for second degree murder by grand jury indictment or by information. She opted to charge Zimmerman by information thereby avoiding the cumbersome and time consuming effort required to persuade a grand jury to indict him.

Prosecution by grand jury indictment originated in England in order to prevent the king from initiating bogus criminal prosecutions against political enemies for political reasons. Transferring the power to charge people with crimes from the king to a group of citizens was a remarkable accomplishment at the time and a very important step in the long evolutionary process from governance by an unchecked monarchy to governance by elected officials.

We live in a different world where grand juries have become little more than rubber stamps signing off on indictments proposed by prosecutors. This is not surprising since grand juries meet in secret without a judge to supervise the proceedings. Hearsay is permitted because the rules of evidence do not apply and the targets of their investigations are not present. The absence of judicial oversight and the exclusion of suspects and their lawyers from participation in the process permits prosecutors to rig the outcome.

A suspect cannot be arrested or charged with a crime unless there is probable cause (i.e., reasonable grounds) to believe he committed the crime.

In the case of an arrest, the police decide whether they have probable cause. However, police are not lawyers. They can and do make mistakes even when they are acting in good faith. Although prosecution by information transfers the power to charge a suspect with a crime from the police who arrested the suspect to a prosecutor, the test remains the same. The prosecutor must have probable cause to believe the suspect committed the crime. The same is true when the prosecution is by grand jury indictment only now the grand jury is making the decision instead of the prosecutor. Finally, in our legal system we have judicial review of police decisions to arrest and prosecutor’s decisions to charge suspects with crimes. The test is still probable cause but now a judge is making the decision.

Judges also review the issue of detention after police have arrested a suspect and booked him into a jail pending a decision to charge or release a suspect by a prosecutor or the grand jury. Judicial review of probable cause and detention in federal court takes place at the initial appearance.

An arraignment is a judicial hearing that occurs after a person has been charged, whether by information or grand jury indictment. The purpose of the arraignment is to formally notify the defendant that he has been charged with a crime(s) and to record his plea. In both federal and state courts, defendants are required to plead “not guilty.”

There is a good reason for this requirement. Arraignment calendars in state and federal courts are busy affairs. Judges cannot accept a guilty plea unless they are satisfied that the defendant knows what rights he is forfeiting by pleading guilty. The defendant also must provide a statement under oath regarding what he did that is legally sufficient to support the plea. Guilty pleas can take up to 15 or even 30 minutes to complete. Therefore, they are scheduled for a different time.

Magistrate judges in each federal district conduct the initial appearances and arraignments in federal court. Initial appearances are typically scheduled in the afternoon to allow sufficient lead time for federal law enforcement agents and prosecutors to prepare the formal charging document, which we call the complaint, and the supporting affidavit (i.e., sworn statement) for probable cause. The complaint and affidavit are filed in the clerk’s office at the United States Courthouse. In turn the clerk’s office notifies the federal public defender regarding the new arrest and that office assigns the case to a lawyer in the office.

The Pretrial Supervision section of the United States Probation Office also is notified about the new case and they assign it to one of their officers. Their job is to prepare a report for the magistrate judge regarding the defendant and to recommend whether he should be released pending the outcome of the case. They also recommend the conditions of the release.

The United States Marshal’s Office is responsible for transporting the person to court for the hearing.

If this process works smoothly, the defense attorney receives his copy of the complaint and affidavit for probable cause with sufficient time to review and discuss it with the defendant in the lockup at the courthouse before the hearing.

At the beginning of the hearing, counsel for the government and the defendant identify themselves for the record and the magistrate judge informs the defendant of the charge(s) against him in the complaint and the maximum sentence that could be imposed, if convicted. He also advises the defendant of the following rights:

1. Right to remain silent

2. Anything he says can be used against him

3. Right to be represented by the lawyer he chooses, if he can afford the fee and the lawyer files a notice of appearance confirming representation

4. Right to have the court appoint counsel to be paid at public expense, if he cannot afford counsel.

5. Right to be presumed innocent.

6. Right to a jury trial

Most defendants cannot afford counsel and for that reason the clerk’s office routinely assigns the case to the Federal Defender, unless retained counsel contacts the clerk’s office and confirms that he will represent the defendant.

In a multiple defendant case, each defendant is entitled to his own lawyer because acting in the best interests of one client often is not in the best interest of the other client. Assume, for example, that you are representing both defendants. Also assume that the prosecutor contacts you and offers a benefit to one client in exchange for a guilty plea and his agreement to testify against the other client. Congratulations! You now have a conflict of interest and have to withdraw from the case, if it would be in the best interests of the first client to advise him to accept the offer because you cannot advise him to do that without violating your duty to act in the best interests of your other client.

Since your conflict of interest would extend to your law partners, the law firm that employs you, or every other lawyer employed by the Federal Public Defender if you work for them, the district courts maintain a list of experienced and qualified lawyers in private practice who have agreed to accept appointments with financial compensation at the rates set by the court. This list is called the Criminal Justice Administration Panel or CJA Panel.

In multiple defendant cases, the clerk’s office appoints the Federal Public Defender to represent the first defendant. Additional defendants in the same case are each assigned to a CJA Panel attorney. I was a CJA Panel attorney in Seattle for 20 years, so I am familiar with the process.

The process I have described is the same in every federal district in the United States.

This process would have been followed in the Boston Marathon bombing case. Since the Federal Public Defender Office would have known that it would be formally appointed to represent Dzhokhar Tsarnaev on Monday, I am reasonably certain that they assembled a team over the weekend to work on the case. The team would have included at least one or two lawyers, an investigator, and possibly a mitigation specialist.

Subsequent news reports have confirmed that a defense team was assembled over the weekend.

I imagine the lawyer or lawyers attempted to meet with Dzhokhar Tsarnaev at the hospital over the weekend, but were denied access. Law enforcement officials can do that absent a request from the suspect in custody to meet with counsel. I doubt he made that request, if he were intubated, unconscious and unable to speak.

The Magistrate Judge also would have known that she would have to conduct an initial appearance for Dzhokhar Tsarnaev on Monday, assuming he survived until then.

I am relatively certain that arrangements were made on Monday morning to conduct the hearing in the hospital at the patient’s bedside with notification to all parties concerned.

I doubt defense counsel were permitted to meet with their client before the FBI’s interrogation team completed its work.

The Fifth Amendment issue is whether the defendant’s statements will be admissible against him, since he provided them during a custodial interrogation without advice and waiver of his rights per Miranda. The government will argue that the public emergency exception exempted it from having to Mirandize the defendant. The defense will argue that the exception has not been judicially approved and did not apply.

A closely related issue is whether the defendant’s statements were voluntary or coerced, given his medical and mental condition. Was he competent to answer questions?

The Sixth Amendment issue is whether he requested a lawyer at any time before or during the interrogation. We know he could not speak and the interrogation team would have known that. Was he denied pencil and paper at the team’s request before the interrogation? Did he scribble out a request that was ignored?

The remedy for a failure to Mirandize the defendant prior to a custodial interrogation is to exclude his statements from being admitted into evidence.

________________________________________

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred

113 Comments | Angela Corey, Arrest, Complaint and Affidavit of Probable Cause, Conflict of Interes, Dzhokhar Trarnaev, Dzhokhar Tsarnaev, Fifth Amendment Right to Remain Silent, fogen, Grand Jury, Guilty Plea, Ineffective Assistance of Counsel, Initial Appearance, Judge Deborah Nelson, Miranda Rights, Sixth Amendment Right to Counsel | Permalink
Posted by masonblue

Dzhokhar Tsarnaev should be Mirandized

April 21, 2013

Sunday, April 21, 2013

I write today to defend a fellow citizen’s Fifth Amendment right to remain silent during a custodial interrogation and his Sixth Amendment right to consult with counsel and have counsel present during a custodial interrogation. He has not been questioned yet due to his medical condition.

Dzhokhar Tsarnaev is a naturalized United States citizen in custody for his suspected participation in a scheme that detonated two bombs killing 3 people and injuring many more along the Boston Marathon race course on April 15, 2013. He is also a suspect in the murder of a law enforcement officer on the campus at the Massachusetts Institute of Technology after the bombing.

He is not an enemy combatant who attacked United States military personnel on foreign soil.

Dzhokhar Tsarnaev should be advised that he has those rights before law enforcement agents attempt to question him and no interrogation should take place, unless he voluntarily waives those rights and agrees to answer questions. No less is required by the SCOTUS decision in Miranda v. Arizona, 384 US 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

If an interrogation proceeds without the advice of rights and voluntary waiver of those rights required by Miranda, then anything he says should be suppressed and cannot be used against him in a court of law.

He has the right to be charged and prosecuted in the United States criminal justice system, rather than before a military tribunal, and accorded all of the rights that would be accorded to any other defendant charged with a crime.

The United States Department of Justice has announced that he will be prosecuted in the civilian criminal justice system and that is a proper decision.

However, despite an acknowledged lack of any evidence or reason to believe that Tsarnaev is part of a larger plot with plans to commit other terrorist acts, the Justice Department has announced that it intends to interrogate him without Mirandizing him.

This decision is an intentional violation of Miranda that not only violates the suspect’s rights, it potentially jeopardizes the prosecution.

There is no reason ever to sacrifice due process of law and this casecertainly provides no compelling reason to consider making an exception.

For more information, read this informative article by Josh Gerstein at Politico.

________________________________________

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred

160 Comments | Dzhokhar Trarnaev, Fifth Amendment Due Process Clause, Fifth Amendment Right to Remain Silent, Miranda Rights, Sixth Amendment Right to Counsel | Tagged: , , , , , | Permalink
Posted by masonblue

Featuring: Willis Newton regarding Zimmerman and the good-cop good-cop interview technique

March 25, 2013

Monday, March 25, 2013

Willis Newton posted an excellent comment at 11:37 pm last night on the open thread regarding the defendant and the good-cop good-cop interview technique.

The only correction that I feel a need to point out is that a criminal defense lawyer would have advised the defendant to shut his mouth. There are no exceptions to that rule.

This full-of-himself intellectually challenged defendant caused irreparable damage to his case when he decided that he could talk his way out of being charged with killing Trayvon Martin. Once he got going, he could not stop and the pièce de résistance was the Shawn Hannity interview.

State’s Attorney Angela Corey and Assistant State’s Attorney Bernie de la Rionda did the right thing when they declined to talk to the defendant as they are ethically prohibited from talking to a defendant represented by counsel, even if the defendant initiates the contact.

George was handled by Serino and Singleton of the SPD in a manner I’d call “good cop/ good cop.” Both tried to be amicable and played to his vanity and let him think they were his “buddies.” This was not because they believed him, it was because this attitude kept George “cooperating” by continuing to make multiple statements without a lawyer present, after being advised of his right to refuse to answer any questions without a lawyer present.

Let me just say this now – anyone, ESPECIALLY innocent people, but anyone, anyone is a fool if you let the cops question you without a lawyer present. They are NOT your friends, no matter how many times they let you go to the bathroom or buy you a cola from a vending machine. They are doing their job, which is to get you to talk yourself into a criminal conviction.

George bought the routine hook line and sinker. He was a fool for giving so many statements, as it became very cleat quickly that he was pushing a false narrative and telling a story that was fraught with inconsistencies, critical omissions and clear contradictions.

One thing he was tricked with was the “voice stress test,” which is a useless and pointless exercise that proves NOTHING and is never admissible in a court of law. George agreed to the test because he thought the cops were believing his lies, and his ego told him that he could and should “talk his way out of this one” since the cops were seemingly sympathetic to his plight. The real and true purpose of the voice stress test was to get George to run through his whole (false) narrative one more time with as little interruption as possible. The “test taker” was simply a new interrogator, but one whose job it was to feign disinterest as he asked George “on background” to relate his tale so the test taker could “set up the voice stress machine.”

Notice that “as they waited for the tester” the cops also let GZ sit around for a long quiet period with detective Singleton. This too is a deliberate session of evidence-gathering that detectives use on a regular basis – put the guy at ease but do anything to keep him from calling a lawyer -just keep him making statements.

She’s being mostly quiet so that he will KEEP talking to fill the uncomfortable silence. It’s here that he made the telling remarks about how “suspects” need to respond to “authority” but that he thinks Singleton “doesn’t have to worry” about that since she has such a commanding presence, or whatever it is that he says exactly. I’m paraphrasing a bit here, but it was a telling moment and I predict will be shown to the jury as part of the overall portrait the prosecution is going to paint to color him as a wanna-be authority figure who had no legal right to profile and pursue a teen to the point where the child fled in terror, and then for GZ to leave his vehicle with a loaded weapon and continue on foot after him into the proverbial “dark alley.”

Whatever the reason the police let him go home that first night, Serino made certain that GZ was going to “keep cooperating.” Letting him go home was a gamble, but one that paid off well since the next day GZ cooperated AGAIN without having a lawyer present and did a “re-eneactment” for the detectives that was less than credible, and again made for several very telling moments that could be presented to a jury to show his lack of credibility at the least. George told provable lies about where he pulled over his car and how his car ended up near the cut thru when he got out of it and started following the teen. Then he massively contradicted his many earlier accounts when he suddenly added the “I must have stumbled” portion of the account of the “first punch” that may or may not have even happened. Each time he’d previously spoke of this alleged blow to his face, he described things like falling backwards, and how he was knocked IMMEDIATELY to the ground before “Trayvon mounted him” as George alleges the teen did. Suddenly George has to insert a 40 foot “stumble” right in the middle of where he wished he could again claim he was knocked to the ground where he stood.

Keep in mind if George had waited for his lawyer to be present, the lawyer would likely advise him to make ONE statement that was carefully crafted and then to refuse to cooperate any further. I’m not certain about this but imagine if GZ had called a lawyer and kept his mouth mostly shut. He may have spent a few nights in jail, but it would be more difficult to impeach his credibility, a key component of his upcoming murder trial. He may have even avoided a trial altogether. His own words are what is going to sink his ship.

After the “re-enactment” the detectives confronted him about his inconsistencies in the harshest session of questioning, but as you listen to the recording keep in mind they are careful to frame their disbelief and harsh questions by mentioning the need for George to “keep his story straight for later” essentially as if what was happening contemporaneously was his “cop buddies” leading him down the path to freedom and insider treatment. They don’t QUITE pull off the whole ruse of buddy-buddy, partially because his lies are too difficult to swallow but also because George is so suspicious and guarded in his words. But the detectives still act as though “this is all just so we can set the record straight” and that George is “gonna be fine probably” etc.

Never do the SPD detectives posture that they are “holding him for questioning.” It’s always that they are “allowing him to make a statement,” or some such polite way of putting things, as though his cooperation is helping them seal the fate of the dead “suspect” who “attacked” him. This is how “good cop/ good cop” works.

Someone in the SPD made the call that George “should be handled with kid gloves” and also let go to sleep in his own bed. It was a pragmatic decision since at the beginning the detectives saw they lacked a good witness to the events from start to finish and that GZ killed the only other person who they thought heard the start of the fight. Keep in mind they had yet to learn that TM was on the phone at the time the fight started.

The fact that George kept in touch with Serino while he was out and not facing a grand jury or criminal charges is a sign that Serino had gained some measure of his trust. Before GZ called Angela Corey he also had been speaking with Serino. I am guessing its likely GZ asked Serino something obsequious like “do you think it might be a good idea if I were to call the state’s attorney and let them know (what a good boy I am) etc?” Serino knew he was pretty much off the case by then but tried to keep the “good cop” ruse going.

Recall the two clown lawyers who weren’t really his lawyers? I also am guessing one of both of them, idiots that they were, knew enough to try to advise George of the folly of trying to consider Angela Corey his new buddy. Whatever the timing and whomever was advising George, he didn’t get his chance to cozy up to the special prosecutor because the state wisely refused to see him at all until he retained a lawyer. He called Corey but she wouldn’t take that call IIRC.

So in answer to the question, “what was he thinking when he tried to see Corey?” I’d say the guess is probably right that he still felt like he could talk his way out the jam he was in. (SO far, so good, he felt.) He’d killed the only real witness to his car-to-pedestrian chase and was fairly sure no one saw how the physical altercation began. Somehow he’d gotten the lucky break of having someone, Shellie probably, move his car away before it could be searched or its location noted. (which way was it facing? He could be lying about that but we don’t know, and we may never know.)

His arrogance is staggering, but his gullibility is as well. IMO Serino did a good job of “handling” George. He may have made other mistakes but in this regard his strategy was a wise one. And the special prosecutor made the wise call that despite George possibly being willing to come make more “statements” that he’s been given enough rope to hang himself with already. They knew the statements he’d given the SPD and they felt they had enough already to paint him as the two-bit liar that he is.

If Serino ever gets a book deal, I’ll buy his book. He’d got things to answer for, but keep in mind he looked into GZ’s eyes and read his body language, heard his story, walked the grounds with him and then looked again into his eyes as George was confronted with the NEN call recording and several of his contradictory statements. If anyone in the world knows whether or not to believe GZ it’s detective Chris Serino, who wanted to charge him with murder and was willing to settle for manslaughter but NEVER felt GZ was in the clear.

126 Comments | Angela Corey, Barbara Walters, Bernie de la Rionda, Chris Serino, Doris Singleton, Fifth Amendment Right to Remain Silent, fogen, George Zimmerman, Shawn Hannity, Willis Newton | Tagged: , , , , , , , , | Permalink
Posted by masonblue

Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

March 8, 2013

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

In Dennis v. State, 51 So.3d 456, 462 (2010), the Florida Supreme Court stated,

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

If you like this post and the quality of this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

75 Comments | Combining Immunity Hearing with the Trial, Fifth Amendment Right to Remain Silent, George Zimmerman, Judge Deborah Nelson, Mark O'Mara, Presumption of Innocence, SYG Immunity Hearing, Trayvon Martin | Tagged: , , , , , , , , , , , | Permalink
Posted by masonblue

Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea

March 6, 2013

Wednesday, March 6, 2013

Several of you, including Xena, Southern Girl and Towerflower, have asked me to comment on the possibility of combining an immunity hearing with the trial. I do not believe that is a workable solution because it would violate the defendant’s right to remain silent and the presumption of innocence.

Let us use the defendant’s case as an example.

In a typical immunity hearing, a defendant has the burden of proving by a preponderance of the evidence (more likely so than not so) that he acted in self-defense. He puts on his case first, since he has the burden of proof, and the prosecution goes second. If the judge concludes that he satisfied his burden, she will enter an order granting him immunity from civil suit and dismiss the criminal case.

A defendant is not required to testify at the immunity hearing, but if he testifies, and most will since they have the burden of proof, he does not waive his right to remain silent at a subsequent trial, if the judge denies his motion for immunity.

If the hearings are combined in GZ’s case, the prosecution will go first because it has the burden of proving beyond a reasonable doubt that he did not kill Trayvon Martin in self-defense.

Let us suppose for the sake of argument that the defense manages to poke some holes in the prosecution’s case such that the defendant and his lawyers are pretty confident about winning the trial without putting on a defense. They do not believe the defendant needs to testify and he does not want to testify.

The defense moves for a judgment of acquittal and for an order granting immunity.

For the purpose of the criminal case and ruling on the motion for a judgment of acquittal, the judge would be required to decide whether a rational trier of fact could find beyond a reasonable doubt that the defendant was guilty based on the evidence introduced during the prosecution’s case. Let us further suppose that the judge decides that a rational trier of fact could convict the defendant and denies the motion for a judgment of acquittal.

For the purpose of ruling on the immunity issue, the judge would be required to decide whether the defense had met its burden to prove by a preponderance of the evidence that he had acted in self-defense. There is little likelihood that the judge would grant the motion because the defense has not put on its case and the defendant has not testified. Therefore, the judge would deny the motion.

Now what happens?

If this were “just” a trial, the defense would rest without introducing any evidence or putting the defendant on the stand to testify. I won about 80% of my trials by employing this strategy, including some self-defense cases by relying on the presumption of innocence and arguing reasonable doubt.

The defense cannot use that strategy, however, if it wants a shot at immunity. Since it has the burden of proof, it must put on a case and the defendant has to testify.

Do you all see the problem now?

The defendant has to give up his right to remain silent to have a shot at immunity, but if he testifies, he risks not only losing the motion for immunity, he also risks being convicted by the jury, if the jury does not believe him.

In other words, in order to exercise his statutory right to an immunity hearing, he is forced to give up his right to remain silent and be presumed innocent in the criminal case.

Notice that combining an immunity hearing with the trial only hurts a defendant.

There is a very long line of SCOTUS cases that prohibit forcing a defendant to give up one constitutional right to exercise another.

That is the problem with combining a pretrial immunity hearing with a trial.

It is also the reason why pretrial suppression hearings in criminal cases are not combined with trials.

I realize that this procedure has been followed in other cases in Florida, and Judge Nelson could decide to follow it in GZ’s case, but I think she would be unwise to do so.

For example, if the defendant were to testify, the jury found him guilty, and Judge Nelson denied his motion for immunity, you can bet that he will claim that he was forced to waive the presumption of innocence and his right to remain silent in order to exercise his statutory right to an immunity hearing and that his lawyer provided ineffective assistance of counsel in violation of his Sixth Amendment right to counsel by waiving his right to a pretrial immunity hearing.

I believe that the case will be reversed and remanded for a new trial, if the scenario that I have described takes place.

The scenario is not far fetched.

Frankly, I am shocked that defense counsel would even consider combining the immunity hearing with the trial. Either they are incompetent or simply using this idea as a smokescreen to conceal that they know they have no case.

They may be unwilling to admit publicly that they do not really intend to pursue the request for an immunity hearing during the trial for the simple reason that they fear financial contributions to the defense would wither away to nothing.

I regard that as theft by misrepresentation.

GZ’s supporters should be screaming bloody murder about this latest turn of events.

Instead, his supporters, including some criminal defense lawyers who should know better, are calling yesterday’s decision a victory for the defense.

If you like this post and the quality of this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

378 Comments | Combining Immunity Hearing with the Trial, Fifth Amendment Right to Remain Silent, fogen, George Zimmerman, Ineffective Assistance of Counsel, Judge Deborah Nelson, Mark O'Mara, Probable Cause, Sixth Amendment Right to Counsel, Suppression Hearing, SYG Immunity Hearing, Trayvon Martin | Tagged: , , , , , , | Permalink
Posted by masonblue

The Defendant’s Statements will be Admissible by the Prosecution in the Trayvon Martin Murder Case

January 26, 2013

Saturday, January 26, 2013

I predict the defendant’s statements to police will be admissible against him at his immunity hearing and his trial.

The legal test will be whether he knowingly, intelligently and voluntarily waived his rights to remain silent and submit to police interrogation without counsel present. The SCOTUS established this test in Miranda vs. Arizona, 384 U.S. 436 (1966).

The defendant gave multiple statements to police investigators. Each statement was videotaped.

Before answering any questions, he reviewed, initialed and signed the standard form acknowledging that he had been advised of his rights to remain silent and to have an attorney present while being questioned and his decision to waive those rights and submit to questioning.

There is no evidence on the videotapes that the police confronted, threatened or intimidated him in any way and they permitted him to go home after interviewing him the first night. Moreover, there is no evidence that they used any trick, lie or ruse to get him to talk. Therefore, his statements will be admissible pursuant to Miranda.

Some of you have commented that his attorneys might move to suppress his statements on the grounds that he suffered from post traumatic stress disorder (PTSD) and he had been diagnosed with attention deficit hyperactivity disorder (ADHD) for which he was taking Adderall.

These mental disorders normally do not prevent a person from knowing that police are about to question them regarding their possible guilt in committing a crime and they have a right to refuse to answer any questions or insist on having a lawyer present during questioning. So long as they understand what they are being told, they can agree to waive those rights and submit to questioning. Absent persuasive evidence to the contrary from a duly qualified mental health expert, PTSD and ADHD would not prevent a person from knowingly, intelligently and voluntarily waiving those rights.

The defense has not filed a motion to suppress the defendant’s statements and I am not expecting such a motion.

Since the prosecution will want to use the defendant’s statements to prove his guilt, you might see BDLR file a motion asking the Court to rule that he can do that. To win the motion, he will have to convince Judge Nelson that the defendant’s statements were knowingly, intelligently and voluntarily made after advice and waiver of Miranda rights. Lawyers refer to this procedure as laying a proper foundation for the admissibility of the statements.

For the reasons I have stated, I expect Judge Nelson will grant the prosecution motion. The defense either will have no objection or its objection will be overruled (i.e., denied).

Keep in mind that the prosecution can introduce any of the defendant’s statements as admissions by a party opponent, but the hearsay rule prevents the defense from introducing any of them.

92 Comments | Admissions by a Party Opponent, Bernie de la Rionda, Evidence, Fifth Amendment Right to Remain Silent, George Zimmerman, Hearsay Rule, Sixth Amendment Right to Counsel | Permalink
Posted by masonblue

If You Open Your Mouth, I Will Kill You With My Bare Hands

December 5, 2012

Wednesday, December 5, 2012

Top O’ the Mornin’:

I settled on this heartwarming expression of affection today because I’ve said it to more than a few clients in the past to emphasize the importance of not talking about their case and it’s probably pretty close to what Jose Baez told Chris Serino recently.

Notice that we have not heard anything from Serino since we found out that he had retained Baez.

Every good criminal defense attorney prefers a wide open playing field with multiple options available to get around immovable evidentiary obstacles created by the client’s acts. Pity Mark O’Mara whose client added to that forest of obstacles with an impenetrable thicket of thorns composed of multiple inconsistent and conflicting statements.

Ay, Dios mio.

Hence, the Third Commandment:

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.

His problem is simple to explain, but not easy to solve.

Everywhere he looks, he sees a sign that reads, “You can’t get there from here.”

“There” being the fabled promised land of “Not Guilty,” on the other side of the vast forest and thicket of thorns and here being here, damn it, stuck on this side with the forest and thicket in between.

Aha, he thinks maybe he can get to the promised land by taking the road less taken.

Yep, Chris Serino did not want to charge the defendant and he is an honorable man.

Chief Bill Lee did not want to charge the defendant and he is an honorable man.

Norm Wolfinger decided not to charge the defendant and he is an honorable man.

Plus, they have that early Halloween photograph of the defendant costumed as a vampire in an orange jacket with the rubber nose that turns color and swells or shrinks on command.

There is a reason why it’s called the road less taken.

I wrote recently,

A focused police search for evidence to support a decision not to charge a person with a crime in a suspicious death case before an investigation has been completed is an example of a preordained conclusion in search of a factual basis to support it.

That is a cover-up, not a competent police investigation.

First, as I have said before, the opinions of the police and prosecution officials regarding the guilt or innocence of the accused in a criminal case are irrelevant and inadmissible. They are not evidence and Judge Nelson is not going to permit Serino, Lee, Wolfinger or anyone else to testify about their opinion and why they believed the defendant should not have been charged.

Second, the FBI is investigating the Sanford Police Department for possible civil rights violations and those three individuals together with others are likely subjects, if not targets, of that investigation. Therefore, they need to lawyer-up as Serino has done and keep their mouths shut.

Third, if they were to speak and tell the truth, they probably would admit that he should have been charged, but was not charged due to racist or other improper considerations. For example, Serino might say, “Yeah, the drone was guilty as sin and I was having one helluva time trying to figure out how to please Wolfinger and the Chief until Wagner and I came up with idea to photoshop the photo Wagner took. We about laughed ourselves sick painting that blood on his lips. Dweeb looked like a freakin’ vampire.

Fourth, if they lie, they likely will be looking at a perjury charge.

Fifth, oh well. You get the picture.

Desperation rarely produces sound decisions.

Like I said,

There is a reason why it’s called the road less taken.

If you like this article, please consider sharing and liking it by clicking on the buttons immediately below and making a financial contribution by clicking on the yellow donation button in the upper right part of this page just below the blue banner containing my name and the name of the blog.

Your contributions will enable me to continue writing informative articles regarding the law and the Trayvon Martin murder case.

Thank you.

285 Comments | Chief Bill Lee, Chris Serino, Fifth Amendment Right to Remain Silent, George Zimmerman, I Will Kill You With My Bare Hands, Norm Wolfinger, Trayvon Martin | Permalink
Posted by masonblue

Zimmerman: Understanding the Miranda Rule

September 2, 2012

To eliminate widespread abusive and coercive practices by police to secure confessions from suspects during custodial interrogations, the United States Supreme Court announced a new rule in the famous case called Miranda v. Arizona, 384 U.S. 436 (1966).

Under the Miranda rule, a suspect’s statement during a custodial interrogation is not admissible unless the prosecution presents evidence that the statement was voluntarily given after the suspect was advised of his rights and agreed to waive them.

Y’all should know them by heart, but here they are in case you may have forgotten them:

You have the right to remain silent;

Anything you say can be used against you in a court of law;

You have the right to an attorney;

If you cannot afford an attorney, the Court will appoint one to represent you at public expense.

The Right to Remain Silent

The right to remain silent comes from the Fifth Amendment, which states:

No person shall be compelled to testify against himself.

Notice that the so-called Compulsion Clause prohibits the use of any threats, physical acts, or punishment to force a suspect to give a statement. The right to remain silent may be asserted at any time, including at trial. Defendants who elect not to testify at trial, are entitled to have the trial court instruct the jury that it cannot consider silence for any purpose, including guilt. This instruction recognizes that silence is insoluble because there may be any number of reasons why a defendant may decide not to testify.

The Right to Counsel

The Sixth Amendment is the source for the right to counsel. For example, in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held via the Due Process Clause of the Fourteenth Amendment that the states must appoint and pay for counsel representing indigent defendants.

Waiver

A “waiver” in the legal system is a formal way of stating that a person has acknowledged that he has an important right or privilege and has decided to give it up. Waivers of constitutional rights are invalid absent a showing that the decision was knowingly, intelligently, and voluntarily made.

The Exclusionary Rule

The Exclusionary Rule is the remedy for a violation of the Miranda Rule. Pursuant to this rule, statements obtained by police from suspects during custodial interrogations are not admissible during the prosecution’s case in chief at trial, unless the police have complied with the Miranda Rule.

However, if the defendant testifies during the defense case and his testimony conflicts with his custodial statement, the statement may be admitted into evidence so long as it was voluntarily given.

Zimmerman Case

One of the biggest problems facing the defense is the number of lengthy and detailed statements that George Zimmerman gave to the police. The statements are internally inconsistent as well as inconsistent with each other. Some of the statements appear to contain provable lies. Unless the defense can persuade the Court to exclude his statements, George Zimmerman may not have much of a chance to win his case.

To evaluate the likelihood that his statements will be admitted, follow this guideline with respect to each statement:

Was the statement obtained during a custodial interrogation?

There are two parts to this question. The first part distinguishes custodial statements from non-custodial statements. Custodial statements require Miranda warnings because they are inherently coercive. Non-custodial statements are not as coercive because the suspect is free to terminate the contact with the police at any time and walk away. The courts apply an objective test to determine whether a suspect is in custody. That is, given the totality of the circumstances, would a reasonable person in the same situation have believed he was free to leave?

If the answer is “yes,” the police are not required to Mirandize a suspect and the statement is admissible, so long as it was voluntarily given.

If the answer is “yes,” the statement is not admissible unless the police advised him of his rights, he acknowledged that he was advised, and he agreed to waive those rights knowingly, intelligently, and voluntarily.

I believe the prosecution may argue that Zimmerman was free to leave and therefore, under the totality of the circumstances, all of the statements were non-custodial, voluntary, and admissible.

Prosecutors generally advise police to delay placing a suspect under arrest so that they can question him in the field under non-coercive circumstances without having to first Mirandize him.

Obviously, the more coercive the circumstances, the more likely the Court will require advice and waiver of Miranda rights before admitting a statement into evidence.

Mirandizing suspects is the safest way to go and I believe the police probably complied with the requirements of Miranda, even though he may been free to leave. We will have to wait and see if the defense moves to exclude his statements.

I do not see any evidence that Zimmerman’s statements were involuntary. He appears to have been eager to talk to the police. For example, he called the prosecutor’s office and tried to speak to Angela Corey about his case, but she was not available. His call was transferred to Bernie de la Rionda, who insisted on talking only to his lawyer. Zimmerman said he did not have a lawyer at that time, but de la Rionda still refused to talk to him and terminated the call.

Bernie de la Rionda’s insistence on talking only to Zimmerman’s lawyer was in compliance with ethical rules.

252 Comments | Crime, Fifth Amendment Right to Remain Silent, George Zimmerman, Miranda Rights, Murder 2, Sixth Amendment Right to Counsel | Permalink
Posted by masonblue

Did George Zimmerman Have a Reasonable Suspicion that Trayvon Martin Intended to Commit a Crime?

August 25, 2012

I believe it may be useful to compare what a police officer may have been able to do to Trayvon Martin, if he had seen him walking in the rain.

A police officer could not have stopped Trayvon Martin and temporarily detained him to determine his identity and investigate what he was doing in the neighborhood, unless he had a reasonable suspicion that Trayvon had committed, was committing, or was about to commit a crime.

Whenever you see the word “reasonable,” as part of a legal test or rule, you should immediately realize that the test or rule is objective, not subjective.

Let us assume for the sake of argument that George Zimmerman actually believed Trayvon Martin was, as he put it, “up to no good.” In other words, he had a subjective hunch that Trayvon was casing the neighborhood looking for a house to burglarize or someone’s property to steal.

A subjective hunch is not a reasonable suspicion unless there were sufficient articulable facts and circumstances such that a reasonable person in George Zimmerman’s situation would have suspected Trayvon intended to burglarize someone’s home or steal someone’s property.

We know the answer to that question is “No,” because Chris Serino told him that. Based on what George Zimmerman claimed to have seen, he did not have a reasonable basis to stop and detain Trayvon Martin.

Regardless what the Zimmerman supporters say, this is an undisputed fact and conclusion of law.

Serino was right. Walking through the neighborhood looking around at houses and hanging out in the covered mailbox area while it was raining does not suggest criminal activity of any kind is about to happen.

Serino also told him that his hoodie notwithstanding, Martin was not dressed in gang attire because he was wearing tan chinos and white tennis shoes.

Therefore, a police officer would have violated Trayvon’s Fourth Amendment right to privacy, if he had stopped and detained him for a few minutes to check his identification and ask him what he was doing in the neighborhood.

Police also have a community caretaker responsibility, however, that does not necessarily involve preventing criminal activity. If an officer saw a front door open, for example, she could walk up to the open door and look inside or call out to see if anyone is home.

If she saw Trayvon walking in the rain looking around at houses, she could approach him and ask him if he needed any assistance. That type of contact does not constitute a stop because the person contacted is free to leave at any time. The protections of the Fourth Amendment do not apply to those types of contacts.

George Zimmerman passed up two opportunities to do the same thing, but declined to do so.

By the way, if you should ever find yourself in an ambiguous situation after being contacted by a police officer, just ask the officer politely if you are free to go.

If the answer is “No,” the protections of the Fourth Amendment apply to you. You can be temporarily detained long enough for the police officer to determine your identity and confirm or reject his suspicion. If the officer determines that there is probable cause to arrest, he may arrest you and take you to jail. If not, he must release you.

At any time, you may assert your 4th Amendment right to refuse to consent to a search, your 5th Amendment right to refuse to answer questions, and your 6th Amendment right to counsel. If you decide to assert any or all of these rights, do so politely.

Be advised that operating a motor vehicle is a privilege and not a right. If you are pulled over for suspicion of DUI and asked to take a breathalyzer, your refusal will result in a suspension of your license, regardless if you are subsequently acquitted of DUI. You can always insist on a blood test.

Probable cause is reasonable grounds to believe that a person has committed a crime. As such, it is more than reasonable grounds to suspect that a person has committed a crime.

I believe it’s now clear that George Zimmerman assumed Trayvon Martin was a criminal looking for a house to burglarize or some property to steal and he hunted him down with the intent of detaining him in order to prevent him from getting away. He was so determined to do that that he intentionally and willfully disregarded the Neighborhood Watch rules and the NEN dispatcher’s admonition.

Acting as a private citizen, he had no authority or right to touch Trayvon, let alone restrain him.

Now that we have reviewed and understand the SYG law, we realize that Trayvon had the right to stand his ground and use reasonably necessary force to defend himself.

I am not satisfied that he used any force to defend himself, but if he did, he had a right to do so.

Since George Zimmerman was the aggressor, he had no right to use any force, let alone deadly force to defend himself.

Assuming for the sake of argument that Trayvon Martin used excessive and deadly force to defend against George Zimmerman’s initial use of force, George Zimmerman would have been required to attempt to withdraw from the confrontation and offer to quit fighting before he could lawfully use deadly force to defend himself.

George Zimmerman never claimed that he did and there is no evidence that he did.

Therefore, George Zimmerman did not act in self-defense. He committed an imminently dangerous act with a depraved mind indifferent to human life and that is the definition of murder in the second degree.

186 Comments | Crime, Depraved Mind, Fifth Amendment Right to Remain Silent, Fourth Amendment, George Zimmerman, Murder 2, Probable Cause, Reasonable Suspicion, Self-defense, Sixth Amendment Right to Counsel, Stand Your Ground, Trayvon Martin | Permalink
Posted by masonblue

« Previous Entries
Follow

Get every new post delivered to your Inbox.

Join 260 other followers

%d bloggers like this: