How to Nullify Jury Nullification and Obtain Justice for Trayvon Martin

January 2, 2013

Wednesday, January 2, 2013

I was inspired by Xena to write this article today to warn the prosecution and all of my readers to take the defense seriously in the Travon Martin murder case

She said,

“In GZ’s case, O’Mara would need 6 jurors and the required number of alternates, ALL who believe in GZ’s innocence before they are sworn in as jurors. Nullification in GZ’s case would require all six jurors to find him innocent. That— ain’t — gonna— happen.”

I hope you are right, Xena, but I am not certain that you are.

I prefer to evaluate the case in terms of potential strategies and probable outcomes. I am compulsive by nature and always evaluated my cases in this fashion. There is no downside to being prepared.

I think the defense is focused on the only argument that it believes has any probability of success and that is jury nullification.

Every effort and every public statement appears to be focused on poisoning the pool of prospective jurors in Seminole County by appealing to racism demonizing Trayvon Martin as a crazed Black Gangsta who deserved to die and portraying the prosecution and the Florida Department of Law Enforcement as outsiders who overruled the local authorities and bypassed a local grand jury to prosecute the defendant for political purposes to appease Black “racist rage.” That is, the defense is attempting to maximize the probability of success through the use of sleazy character assassination and grotesque propaganda in a highly focused way that I have only seen in used in elections.

Keep in mind that the defense does not necessarily need to have convinced all six jurors to vote “not guilty” before the trial starts. They just need to convince one or two strong personalities who will serve as their voices during deliberations refusing to vote guilty and pushing the same buttons that O’Mara, West and Robert Jr., are pushing until they finally achieve consensus.

Whether this strategy will succeed in the face of an extremely unlikable defendant and a veritable mountain of evidence of his guilt is unknown and difficult for me to estimate at this time.

I can only do what is within my power to do and that is to illuminate and publicize what I see hoping that my efforts to warn will inspire others to act in ways that will reduce the probability that the defense strategy will succeed.

I believe this case will be won or lost in jury selection.

I firmly believe that an unbiased and unprejudiced jury of reasonable people will reject this defendant’s claim off self-defense and convict him of murder in the second degree. I do not believe there is a reasonable probability that such a jury will acquit this defendant.

However, I believe there is a statistically significant probability that a biased and prejudiced jury will acquit this defendant despite overwhelming evidence of guilt.

If for no other reason than to avoid overconfidence, the prosecution needs to focus on jury selection now to develop a strategy to identify and excuse potential pro-defendant stealth jurors willing to lie in order to get on the jury and wreak havoc.

The prosecution should consider retaining one or more jury consultants familiar with the demographics of Seminole County and polling residents regarding their knowledge and opinions of the case. Careful consideration should be given to developing a comprehensive juror questionnaire that exposes not only bias or prejudice but efforts to conceal bias or prejudice. The prosecution should request additional peremptory challenges since they may be the only means it has to strike dishonest stealth jurors. The use of individual attorney-conducted voir dire is critically important as is cultivating the art of asking open-ended questions, carefully listening to the answers and following-up with insightful and respectful questions to discover and reveal possible biases or prejudices.

I recommend against sequestering the jury because sequestration is equivalent to being imprisoned and that will cause juror hostility to the court to no good end.

This team of prosecutors is on unfamiliar ground and should not assume that they will be regarded with the usual degree of respect to which they have become accustomed on their home turf. They must do everything possible to avoid being seen as an outsider seeking to convict and imprison a decent local citizen to serve the governor’s political agenda.

The defendant’s supporters do not fight fair. They have no respect for the truth and will use any tactic to discredit and intimidate. I know what I am talking about because they have been impersonating me, including using my photograph as an avatar at the Huffington Post and other sites, spreading false and malicious information to discredit me and my efforts to seek justice for Trayvon.

What they have done and continue to do to me pales into insignificance when compared to what they have done to demonize Trayvon and intimidate Dee Dee, Sybrina Fulton, Tracy Martin, the Martin family, Benjamin Crump, Natalie Jackson and others who support justice for Trayvon.

The prosecution is not only on unfamiliar ground in Seminole County, it’s on unfamiliar ground in a propaganda war.

The sooner it acknowledges the potential danger and develops a comprehensive strategy to deal with it the more likely it will obtain a just result and convict this defendant.

157 Comments | Challenges for Cause, Individual Voir Dire, Juror Questionnaire, Jury Nullification, Jury Selection, Jury Sequestration, Justice for Trayvon Martin, Peremptory Challenges | Permalink
Posted by masonblue

Zimmerman: Motion for a Change of Venue

September 20, 2012

The Sixth Amendment, which is applicable to state criminal proceedings through the Due Process Clause of the Fourteenth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Impartial Jury Clause is at issue in the Zimmerman case because of:

(1) The tsunami of outrage nationwide in reaction to State’s Attorney for Seminole County, Norm Wolfinger’s decision not to charge Zimmerman with a crime for killing Trayvon Martin;

(2) Governor Scott’s decision to replace Wolfinger with State’s Attorney Angela Corey;

(3) Wolfinger’s decision to retire;

(4) Angela Corey’s decision to charge Zimmerman with second degree murder;

(5) The firing of Chief Bill Lee of the Sanford Police Department for his handling of the investigation into Trayvon Martin’s death;

(6) The release of much of the evidence in the case to the public before trial; and

(7) the conduct and various miscues of Zimmerman, Mark O’Mara, and Zimmerman’s friend Mark Osterman, who have attempted to try the case in the media to generate sympathy and financial support for Zimmerman’s defense effort.

What we now have is an extraordinary mess in which it seems that everyone in the country, never mind Seminole County, has a strong opinion about Zimmerman’s guilt or innocence.

The question is whether it is possible for Zimmerman to get a fair trial by an impartial jury in Seminole County or anywhere else in Florida and, if not, whether and to what extent should Zimmerman’s conduct by publicizing his case, including going on the Sean Hannity Show and pouring gasoline on the fire by proclaiming that he had no regrets for killing the unarmed teen because it all happened according to “God’s Plan,” should play a role in deciding what should be done about the mess.

Before anyone attempts to answer my two questions, please consider something that I know to be true from personal experience. I have represented clients in high visibility cases where it seemed impossible that any sentient being in the state did not have a strong opinion about the guilt or innocence of my client and in each case we were able to select a jury of twelve people, plus alternates, who claimed to know very little about the case and not to have formed an opinion about the guilt or innocence of my client. That happened in the Casey Anthony case and I predict it will happen in the Zimmerman case too.

The point is there are many people who have no interest in the crime news and never read, watch or listen to it.

There are two potential solutions.

One is for the Court to grant a defense motion for a change of venue, which will likely be forthcoming soon, and follow the procedure used in the Anthony case. Pick the jury in an adjoining county, sequester them for the trial, and try the case in the Seminole County Circuit Court.

The second solution is to wait and see what happens during jury selection. Have all the prospective jurors fill out a questionnaire that asks them to write down what they’ve read, heard or seen about the case and state whether they have formed an opinion about Zimmerman’s guilt or innocence. Then you bring them in and question them individually until you are able to seat a six-person jury, plus alternates.

I favor a mixture of both options.

The Court and both parties have a common interest in doing what they can to assure a fair trial by an impartial jury. They should join together to hire a polling firm and have them design a questionnaire or series of questionnaires to poll citizens in Seminole and Orange County as well the larger urban communities in Miami, Tampa and Jacksonville. Have them tabulate the results and chart any changes over time.

The results of the poll should provide a statistically valid estimate of the probability that Zimmerman can receive a fair trial from an impartial jury in any of those communities.

Without a poll, the Court would not have a sufficient basis to make a decision.

We know from experience that jurors hate being sequestered and their rising anger can affect how they decide the case in unpredictable ways. It’s also extremely expensive. Therefore, sequestration should be avoided, if at all possible.

If the Court is going to allow the jurors to go home, home cannot be somewhere on the far side of the Moon. The poll should help select the proper venue and the best solution might involve trying the case in a distant venue rather than transporting and sequestering the jury in Sanford.

For all of these reasons, I recommend using a poll to select the venue, non-sequestration of the jury, and the use of questionnaires with individual voir dire to select the jury.

171 Comments | George Zimmerman, Individual Voir Dire, Juror Questionnaire, Motion for Change of Venue | Tagged: , , , , , , , , | Permalink
Posted by masonblue

Zimmerman: How to Select a Jury Despite the Child Molestation Allegation

July 22, 2012

Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.

To keep it simple, we are going to focus on W9′s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.

This is what she said:

The sexual abuse consisted of digital penetration of her vagina and fondling.

She ended it when she was 16 and later told her parents. Her parents told his parents.

She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.

Our client denies that he ever sexually molested her or anyone else.

We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.

We know that many, possibly all of the people in the jury pool, have heard or read her story.

What do we do?

First, let’s back up. We would have spent the past week developing a juror questionnaire. A section of that questionnaire covered pretrial publicity.

We would have prepared a short summary of the case telling the prospective jurors the names of the defendant who is White/Hispanic and the alleged victim who is Black, the date and location of the incident, a brief statement of what allegedly happened, and a statement that the defendant has admitted shooting the victim to death, but claims he did so in self-defense when the victim attacked and attempted to beat him to death. The victim was unarmed and the incident was extensively reported by the media and discussed over the internet.

Each prospective juror was then asked on the form, if they recalled anything about the incident, and if so, to write down everything they could recall about it.

Then they were asked if they had formed an opinion about the case and, if so, what it was (i.e., guilty or not guilty), whether they had ever expressed it to anyone, and how often they had expressed it.

They also were asked if they had ever argued with anyone about the case.

After the jurors reported to court, they were instructed to fill out the form. They identified themselves by juror number, rather than name, and told the forms would be destroyed after the case.

They also were instructed that they had to be truthful and sign and declare under penalty of perjury that the information they provided was true and correct to the best of their knowledge and belief.

The forms were collected and copied. The prosecution, defense, and the judge each have a set.

We have reviewed our set. We set aside all of the jurors who have no recollection of the case and sorted those who do into two categories: those with opinions and those without.

Now, we aside everyone without an opinion and sort those who do have opinions into two categories: those who believe the defendant is not guilty and those who believe he is guilty.

Since we are representing the defendant, our category of best jurors will include everyone who said he was not guilty.

We are not interested in this group at this time, so we also set them aside

Question: Why do we do that?

Answer: Because jury selection is a process of choosing the prospective jurors we want to eliminate. The final product will be whomever is left after each side eliminates the prospective jurors they do not want. There is a limit to how many prospective jurors we can eliminate, however, so we have to choose carefully.

Therefore, we are going to focus on the category of prospective jurors who believe our client is guilty and rank them according to how strong their opinions are and how much they know about the case.

Those with the strongest opinions based on the most knowledge of the case will be our targeted set of prospective jurors to eliminate. Some portion of these prospective jurors will have commented to the effect that the defendant is a child molester.

We will want the judge to excuse these people.

Individual voir dire: We will question the prospective jurors individually out of the presence of the others to avoid infecting the others with prejudicial information.

Challenges for Cause: We have an unlimited number of challenges for cause. To successfully challenge a prospective juror for cause (i.e., persuade the judge to excuse the prospective juror), we have to show that the prospective juror cannot be fair and impartial.

Establishing that the prospective juror believes our client is guilty is only half the battle. The critical question is whether we can persuade the prospective juror to admit that his or her opinion is so strong that he or she cannot honestly presume our client is innocent.

Peremptory Challenges: We have a limited number of peremptory challenges. When selecting a 12 person jury, each side gets 6 peremptory challenges. Unlike a challenge for cause when we have to convince the judge that the prospective juror cannot be fair and impartial, with only one exception we do not have to provide any reason to support or justify a peremptory challenge. This is why there is a limitation on the number of peremptory challenges.

Exception to the Rule: Neither side can use peremptory challenges to systematically exclude prospective jurors based on race, gender, or religion.

Basis for this exception: To stop the routine prosecution practice in the South of using its peremptory challenges to disqualify all Black prospective jurors in cases where the defendant was Black. Since then, the prohibition has been extended to apply equally to the defense and to cover gender and religion.

What this exception means for us: We cannot use our 6 peremptory challenges to systematically exclude Blacks from the jury.

This does not mean we cannot exclude some Black people, but we have to have a reason unrelated to race and we had better be consistent in excluding White prospective jurors for the same reason.

If we do not, our peremptory challenges will be denied and we will likely be held in contempt of court.

How do we get a prospective juror to admit he or she cannot be fair or impartial?

Answer: We start by asking the prospective juror to explain why he or she believes they can disregard their opinion and presume our client is innocent.

If the prospective juror mentioned the child molester factor, get it out on the table and ask them how they could presume our client innocent, despite believing he is a child molester.

When they finish their explanation, ask them if they had to vote now, without having heard any evidence, what their verdict would be.

The typical response will be, “I can’t do that.”

Why not? you respond.

“Because I don’t have any evidence upon which to base a verdict.”

“Would you want the prosecution to introduce evidence to prove its case?

“Yes, of course.”

“How about the defense. Would you want the defense to introduce evidence to prove self-defense?”

Would you want the defense to introduce evidence to prove he is not a child molester?”

“Yes.”

“What happens if the defense doesn’t change your opinion?”

“I would vote guilty.”

At this point, you thank the prospective juror and say, “Your Honor, I respectfully challenge the prospective juror for cause because he has demonstrated that he cannot presume my client innocent and he would expect us to change his opinion that our client is guilty.”

The prosecution would be permitted to attempt to rehabilitate the prospective juror.

If successful, the judge would deny the challenge for cause and we would have to use one of our precious peremptory challenges to excuse him.

One down, five to go.

If unsuccessful, the judge would excuse the juror for cause and we would still have our 6 peremptory challenges.

In this manner, we would proceed through the panel of jurors until we have passed 24 jurors for cause, plus 3 for 1 alternate. (Total: 27)

If both sides exercise all of their peremptory challenges, there will be 17 left.

If both sides exercise their 1 peremptory challenge each against a potential alternate juror, there will be 12 jurors left, plus one alternate.

Key points to remember:

1. Sort the prospective jurors according to the order in which you want to get rid of them.

2. Keep asking open ended why-type questions and follow-up on the answers.

3. Every time you fail to get a potential juror excused for cause, you will have to use a peremptory challenge to get rid of them.

4, You have only 6 peremptory challenges.

68 Comments | Challenges for Cause, Crime, George Zimmerman, Individual Voir Dire, Juror Questionnaire, Jury Selection, Murder 2, Peremptory Challenges, Self-defense, Stand Your Ground, Trayvon Martin, Uncategorized | Tagged: , , , , , , | Permalink
Posted by masonblue

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