Post trial immunity hearings are a terrible idea

March 11, 2013

Monday, March 11, 2013

Good morning:

I write today to clear up some remaining uncertainty regarding the timing for a motion for immunity and the immunity hearing.

The motion for immunity is similar to a motion to suppress evidence because, if the motion is granted, the case is over.

Hearings on potentially outcome-determinative motions, such as a motion to suppress evidence, are always held before trial because, if the moving party wins (i.e., the defendant), the case is dismissed and there is no trial. If the defendant loses, the case proceeds to trial, unless he pleads guilty.

For example, let us suppose that a police officer arrested a defendant without probable cause and discovered a rock of crack cocaine in a pocket in the defendant’s jacket during the search incident to the arrest. The defendant is charged with possession of cocaine and pleads not guilty at the arraignment.

The defendant moves to suppress the rock before trial on the ground that the arrest and subsequent search were unlawful because the officer arrested him without probable cause. But for the unlawful arrest, the rock would not have been discovered. Thus, the rock is a “fruit of the poisonous tree” and must be suppressed pursuant to the exclusionary rule. That is, evidence seized unlawfully from a defendant by police cannot be used against the defendant at trial.

Without the cocaine, the prosecution would be unable to prove that the defendant possessed cocaine. Therefore, it would have to dismiss the case and the court would have to grant the motion.

An immunity hearing is similar. If the defendant prevails, the court must grant immunity from criminal prosecution and civil suit. Therefore, the outcome is similar to the motion to suppress. The prosecution cannot proceed and the court must dismiss the case.

While it is theoretically possible to merge a hearing on a motion to suppress evidence into a trial, there is little sense to do so because the issues and attorney strategies are different.

For example, the direct and cross examination of the arresting officer for purposes of the suppression motion will be focused on whether the officer had probable cause to arrest, whereas, the legality of the arrest and subsequent search is not an issue for purposes of the trial. It’s just something that happened and no longer relevant to the ultimate issue the jury must decide. That is, whether the defendant is guilty or not guilty.

I have provided the simplest example of a motion to suppress evidence. They can be far more complicated and last more than one day, such as might be the case when multiple locations are searched, some with search warrants and some without. It makes no sense to waste the juror’s time and risk confusing them with irrelevant evidence and issues.

In the federal and state courts in which I practiced, the courts set deadlines within which to file motions to suppress. Failure to comply with a deadline typically meant the motion was waived, unless you had a good reason for not filing the motion, such as newly discovered evidence that you did not know prior to the deadline.

Federal and state judges hate to summon people for jury duty for cases that can be potentially resolved by outcome-determinative motions prior to trial. They hate even more having to waste jury time with evidence that is irrelevant to the issues the jury must decide.

Although constitutional rights are at stake during hearings on motions to suppress evidence, the courts can and do hold that those rights are waived by failing to assert them in timely fashion.

Just as notice and an opportunity to be heard are important to due process of law, so too is finality. Legal issues that can be decided should be decided. I cannot think of a good reason not to decide the issue of immunity before trial and to deem it waived, if it is not.

I have already written about the potential for constitutional error requiring reversal of a conviction and remand for a new trial here and here, if an immunity hearing is merged into a trial and will not revisit that issue today.

However, I will comment regarding the idea that an immunity hearing could be conducted after trial.

If a jury returns a guilty verdict, the case is over. Since the defendant’s guilt has been proven beyond a reasonable doubt, the jury necessarily must have decided that the prosecution proved absence of self-defense beyond a reasonable doubt. The verdict precludes a finding that the defendant proved self-defense by a preponderance of the evidence. Therefore, the immunity motion must be denied.

If the jury acquits the defendant, however, either judge or jury could theoretically decide that the defendant had met his burden of proving by a preponderance of the evidence that he acted in self-defense.

The problem in this situation, however, is that the jury may have acquitted a defendant who did not testify or offer any evidence, which a defendant has a right to do.

Should he now be permitted to put on a case to prove that he acted in self-defense?

Does he have a right to have the jury decide that issue or must the judge decide the issue.

What happens if the defendant testifies and the judge or jury decides they do not believe the defendant and now want to find him guilty?

I do not see any easy answers to these questions.

There is no doubt that the legislature intended that the issue of immunity should be raised and decided before trial and I can think of no good reason to do otherwise.

If I were the judge, I would hold a hearing as soon as possible to consider whether the immunity hearing can be merged with the trial or considered after trial, and if after trial, whether the judge or the jury should decide whether to grant immunity.

These are extremely important issues that should be considered and resolved before trial to avoid a lot of grief later.

If no action is taken, we can only sit back and watch a slow-motion train wreck.

Finally, I want everyone to know that I firmly believe that the defense does not want to have an immunity hearing because they have no defense and the defendant would be crucified on cross examination exposing him to be the liar that he is. They obviously do not want to admit this, so they allowed the court to strike the hearing without formally and publicly waiving it. I doubt that we will hear more from the defense about this issue, since they want it to disappear.

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1,759 Comments | fogen, George Zimmerman, Self-defense, Stand Your Ground, Suppression Hearing, SYG Immunity Hearing, Trayvon Martin | Tagged: , , , | Permalink
Posted by masonblue

Nitty Gritty: Three Questions for Jury to Answer in Trayvon Martin Murder Case

December 31, 2012

Monday, December 31, 2012

Thankfully, 2012 will soon pass into the rearview mirror.

As we look forward to next year, I think today is a good day to review the three predominant questions that the jury will have to decide when the defendant charged with murdering Trayvon Martin goes to trial. I posted this comment last night.

Actually, O’Mara has conceded that SYG and the castle doctrine do not apply and the evidence will show that, as a matter of law, the defendant was the aggressor.

As the aggressor, the defendant can use deadly force in self-defense only if,

(a) Trayvon responded to his aggression by using more force than was reasonably necessary to defend himself;

(b) He reasonably perceived that Trayvon’s use of such force created an imminent danger of death or serious bodily injury; and

(c) He attempted to end the confrontation and withdraw before he used deadly force.

O’Mara announced at a press conference that he will argue that the defendant could not withdraw before using deadly force because the defendant was lying on his back unable to withdraw with Trayvon straddling him raining down blows MMA style and slamming his head into the concrete sidewalk.

Those are the basic three questions that the jury will have to decide.

The Court will instruct the jury to presume the answer to all 3 questions is “Yes,” and the prosecution must prove beyond a reasonable doubt that the answer is “No.”

Keep in mind that, as a practical matter, the defendant will have to testify and that means he will be cross examined, thoroughly.

Malisha was the only person to attempt an answer and this is what she said:

Professor, thanks for the clarity.

The three questions. I love them. I always love “three questions.”

(a) Did Trayvon respond to Fogen’s aggression by using more force than was reasonably necessary to defend himself?

I think the answer “NO” is easy to prove because in fact Fogen killed Trayvon. Thus, Fogen’s aggression against Trayvon was, by definition, potentially lethal from the get-go. Thus, also by definition, deadly force was authorized.

(b) Did Fogen reasonably perceive that Trayvon’s use of such force created an imminent danger of death or serious bodily injury to himself, to Fogen?

I think the answer “NO” is also easy to prove because injuries that Fogen sustained were nowhere near life-threatening. If he was beaten at all, he was beaten in such a way as to do no serious damage. A fender bender would have hurt him more than the encounter with Trayvon Martin hurt him, even if both scratches on his head AND a minor injury to his nose were all attributable to contact with Trayvon Martin.

(c) Did Fogen attempt to end the confrontation and withdraw before he used deadly force?

Fogen has not even claimed that he did so. Even as he narrated his non-credible self-defense story, he claims that he told the neighbor to help him “restrain” Trayvon Martin, but he never told Trayvon Martin that he wanted to stop fighting. Nor did he tell Trayvon Martin, at any point (according to his own narrative) that he had a gun and would shoot unless Trayvon Martin stopped hurting him. Remember, even as he narrated that he “spread out [Trayvon's] hands,” he still claimed that Trayvon was continuing to struggle and curse. And at no time before or after firing his one shot did Fogen say, “I’m leaving now; I’m going back to my schtruck now; I’ll leave you alone now,” or even, “The police are coming so stop fighting now and we’ll wait for them.”

Now it is your turn. What are your thoughts?

How do you think the defendant will do on cross examination?

I also will start an open thread for those who wish to discuss other matters.

Many thanks and many blessings to all of you for participating and making this blog a great and safe place to discuss the case.

Happy New Year!!!!!!!!

Fred

289 Comments | Crime, Featuring, George Zimmerman, Jury Instructions, Malisha, Murder 2, Murder 2 FL, Nitty Gritty, Self-defense, Self-Defense (SYG) FL, Stand Your Ground, Theories of the Case, Trayvon Martin | Permalink
Posted by masonblue

Zimmerman: Representing Him and the Inevitable Question: My God, What Have I Become?

October 22, 2012

Brown posted this comment Sunday night at 8:31 pm:

“Correct, but what I was trying to convey was that DeeDee might not understand that he would of been justified. Let’s just say that yes TM told DeeDee that he might have to turn around and face this dude and fight him because he felt threaten. DeeDee as a young teen who doesn’t know anything about SYG, might not understand that TM would of been in the right. If you look through her eyes, she only sees TM a kid who doesn’t fight had to fight against a grown white man. Do you see how it might put her in a position of thinking that if she were to say something like that, her thought process might be, OH boy if I say that TM would be in the wrong. She doesn’t understand that the law was on his side as soon as GZ followed him.”

Although Brown’s comment is about Dee Dee, her comment also is applicable to what clients say to their attorneys. For example, I have previously stated that the Fifth Commandment mandates that lawyers should not assume that their clients tell them the truth.

Brown’s comment pinpoints one of the reasons why clients will lie to their lawyers. For example, because the client might not realize that he has a valid self-defense claim in a murder case where there were no eyewitnesses (or he fears that no one will believe him if he tells the truth), the client might tell the lawyer that he was at a family BBQ when the death occurred. This is a false alibi defense that he also might have provided to the police.

Now let us assume that you are the lawyer and your reliable investigator, Paul Drake, has interviewed everyone who was present at the family BBQ and no one recalls your client being there until a couple of hours after the victim was killed. In other words, your client had plenty of time to kill the victim and get to the BBQ before the witnesses saw him.

You decide to confront your client. Lawyers often refer to these confrontations as a “come-to-Jesus moment.”

After telling your client that his alibi defense is not going to work, he tells you what really happened. You realize that he is describing a situation that constitutes self-defense under the SYG law in your jurisdiction.

Let us say this happens mid-trial after the prosecution rests its case and now it’s time for the defense to go forward.

Now what do you do?

In Nix v. Whiteside, 475 U.S. 157 (1986), the SCOTUS considered a similar fact situation. The Court held that the Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial.

In a unanimous opinion written by Chief Justice Berger, the SCOTUS said:

Page 475 U. S. 160

I
A

Whiteside was convicted of second-degree murder by a jury verdict which was affirmed by the Iowa courts. The killing took place on February 8, 1977, in Cedar Rapids, Iowa. Whiteside and two others went to one Calvin Love’s apartment late that night, seeking marihuana. Love was in bed when Whiteside and his companions arrived; an argument between Whiteside and Love over the marihuana ensued. At one point, Love directed his girlfriend to get his “piece,” and at another point got up, then returned to his bed. According to Whiteside’s testimony, Love then started to reach under his pillow and moved toward Whiteside. Whiteside stabbed Love in the chest, inflicting a fatal wound.

Whiteside was charged with murder, and when counsel was appointed, he objected to the lawyer initially appointed, claiming that he felt uncomfortable with a lawyer who had formerly been a prosecutor. Gary L. Robinson was then appointed, and immediately began an investigation. Whiteside gave him a statement that he had stabbed Love as the latter “was pulling a pistol from underneath the pillow on the bed.” Upon questioning by Robinson, however, Whiteside indicated that he had not actually seen a gun, but that he was convinced that Love had a gun. No pistol was found on the premises; shortly after the police search following the stabbing, which had revealed no weapon, the victim’s family had removed all of the victim’s possessions from the apartment. Robinson interviewed Whiteside’s companions who were present during the stabbing, and none had seen a gun during the incident. Robinson advised Whiteside that the existence of a gun was not necessary to establish the claim of self-defense, and that only a reasonable belief that the victim had a gun nearby was necessary, even though no gun was actually present.
Until shortly before trial, Whiteside consistently stated to Robinson that he had not actually seen a gun, but that he was

Page 475 U. S. 161

convinced that Love had a gun in his hand. About a week before trial, during preparation for direct examination, Whiteside for the first time told Robinson and his associate Donna Paulsen that he had seen something “metallic” in Love’s hand. When asked about this, Whiteside responded:

“[I]n Howard Cook’s case, there was a gun. If I don’t say I saw a gun, I’m dead.”

Robinson told Whiteside that such testimony would be perjury, and repeated that it was not necessary to prove that a gun was available, but only that Whiteside reasonably believed that he was in danger. On Whiteside’s insisting that he would testify that he saw “something metallic,” Robinson told him, according to Robinson’s testimony:

“[W]e could not allow him to [testify falsely], because that would be perjury, and, as officers of the court, we would be suborning perjury if we allowed him to do it; . . . I advised him that, if he did do that, it would be my duty to advise the Court of what he was doing, and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony.”
App. to Pet. for Cert. A-85. Robinson also indicated he would seek to withdraw from the representation if Whiteside insisted on committing perjury. [Footnote 2]

Whiteside testified in his own defense at trial, and stated that he “knew” that Love had a gun, and that he believed Love was reaching for a gun, and he had acted swiftly in self-defense. On cross-examination, he admitted that he had not

Page 475 U. S. 162

actually seen a gun in Love’s hand. Robinson presented evidence that Love had been seen with a sawed-off shotgun on other occasions, that the police search of the apartment may have been careless, and that the victim’s family had removed everything from the apartment shortly after the crime. Robinson presented this evidence to show a basis for Whiteside’s asserted fear that Love had a gun.

The jury returned a verdict of second-degree murder, and Whiteside moved for a new trial, claiming that he had been deprived of a fair trial by Robinson’s admonitions not to state that he saw a gun or “something metallic.” The trial court held a hearing, heard testimony by Whiteside and Robinson, and denied the motion. The trial court made specific findings that the facts were as related by Robinson.
The Supreme Court of Iowa affirmed respondent’s conviction. State v. Whiteside, 272 N.W.2d 468 (1978). That court held that the right to have counsel present all appropriate defenses does not extend to using perjury, and that an attorney’s duty to a client does not extend to assisting a client in committing perjury. Relying on DR 7-102(A)(4) of the Iowa Code of Professional Responsibility for Lawyers, which expressly prohibits an attorney from using perjured testimony, and Iowa Code § 721.2 (now Iowa Code § 720.3 (1985)), which criminalizes subornation of perjury, the Iowa court concluded that not only were Robinson’s actions permissible, but were required. The court commended “both Mr. Robinson and Ms. Paulsen for the high ethical manner in which this matter was handled.”

B

Whiteside then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa. In that petition, Whiteside alleged that he had been denied effective assistance of counsel and of his right to present a defense by Robinson’s refusal to allow him to testify as he had proposed. The District Court denied the writ. Accepting the state trial court’s factual finding that

Page 475 U. S. 163

Whiteside’s intended testimony would have been perjurious, it concluded that there could be no grounds for habeas relief, since there is no constitutional right to present a perjured defense.
The United States Court of Appeals for the Eighth Circuit reversed and directed that the writ of habeas corpus be granted. Whiteside v. Scurr, 744 F.2d 1323 (1984). The Court of Appeals accepted the findings of the trial judge, affirmed by the Iowa Supreme Court, that trial counsel believed with good cause that Whiteside would testify falsely, and acknowledged that, under Harris v. New York, 401 U. S. 222 (1971), a criminal defendant’s privilege to testify in his own behalf does not include a right to commit perjury. Nevertheless, the court reasoned that an intent to commit perjury, communicated to counsel, does not alter a defendant’s right to effective assistance of counsel, and that Robinson’s admonition to Whiteside that he would inform the court of Whiteside’s perjury constituted a threat to violate the attorney’s duty to preserve client confidences. [Footnote 3] According to the Court of Appeals, this threatened violation of client confidences breached the standards of effective representation set down in Strickland v. Washington, 466 U. S. 668 (1984). The court also concluded that Strickland’s prejudice requirement was satisfied by an implication of prejudice from the conflict between Robinson’s duty of loyalty to his client and his ethical duties. A petition for rehearing en banc was denied, with Judges Gibson, Ross, Fagg, and Bowman dissenting. Whiteside v. Scurr, 750 F.2d 713 (1984). We granted certiorari, 471 U.S. 1014 (1985), and we reverse.

I believe The SCOTUS decision in Nix v. Whiteside can be distinguished from the facts in my hypothetical because of the lack of certainty that the client intended to commit perjury.

This distinction is important as it helps to define the boundary between a lawyer’s duty to provide effective assistance of counsel to his client and his ethical and legal obligation not to assist the client to commit perjury to beat the charge.

Criminal defense attorneys routinely navigate close, but not too close, to the land of perjury.

Many times they do not want to know the truth and you should take that into account when you hear Mark O’Mara or any other criminal defense attorney speak about a case.

This is why I say that a criminal defense attorney should never judge his client. That responsibility is assigned to judges and juries.

But sometimes, you cannot help it and therein lies the rub as well as the doubt and the inevitable question:.

My God, what have I become?

102 Comments | Crime, Dee Dee, Defense Strategy, Ethical Obligations, George Zimmerman, Importance of Listening, Ineffective Assistance of Counsel, Perjury, Representing the Difficult Client, Self-defense, Sixth Amendment Right to Counsel, Stand Your Ground, Thirteen Commandments of Criminal Defense, Trayvon Martin, United States Supreme Court | Tagged: , , , , , , | Permalink
Posted by masonblue

Zimmerman: Dee Dee’s Testimony Regarding Trayvon Martin’s Fear of Zimmerman is Admissible

September 12, 2012

Dennis recently asked the following question in a comment to my post recommending the appointment of a special master to screen discovery.

You asked:

“I have a question for you if you don’t mind. Is the witness/testimony from DeeDee considered “hearsay” and what are the laws regarding “hearsay” evidence in Florida? The jurors of the Peterson case said that type of evidence was critical to their conviction, and if Drew’s Law didn’t exist he would have walked free.”

My Answer:

“Most of the relevant things Trayvon said to DeeDee should be admissible under the present sense impression and excited utterance exceptions to the hearsay rule because he was describing an emotionally distressing event to her while under the influence of the event. The rest should come in as non-hearsay since it will not be offered to prove the truth of the matter asserted in the statement. Instead, it will be offered to show his state of mind or some other factor. Should not be too difficult for a good trial lawyer to navigate through the hearsay rule in that situation.”

Dee Dee is a potentially devastating witness for the prosecution because she was listening to Trayvon’s narrative description of Zimmerman’s menacing behavior and his own fearful reaction to it. She also puts the lie to Zimmerman’s skipping psycho-gangsta who materializes out of the darkness and attempts to kill Zimmerman with his bare hands while uttering dated B-movie dialog.

I do not believe her testimony is necessary to prove Zimmerman’s guilt because the forensics and his own conflicting and inconsistent stories should be sufficient to accomplish that. Nevertheless, she adds something important. She humanizes him and she serves as his voice from beyond the grave. Because of this, Zimmerman’s mad dog supporters have assassinated her character with extraordinary relish.

I am sure most of you have read some of their accusations, if not all of them, and shaken your heads in disgust at their tactics. I did and ever since they attempted to drown my voice in a tsunami of lies, I have assumed everything they say about everyone who is not a Zimmerman supporter is a lie. I have been ignoring them and will continue to ignore them because they are a cancer on this case. Therefore, as with the Zimmerman principle, I assume everything they said about Dee Dee is or anyone else in this case is a lie, unless it is corroborated by independent credible evidence.

At first glance, the hearsay rule would appear to exclude everything Trayvon said to Dee Dee. However, there are three reasons why it does not.

(1) A statement by Trayvon to Dee Dee is not hearsay unless it is offered to prove the truth of the matter asserted in the statement.

For example, if Trayvon said, I ran away from the creepy man following me. the statement would be hearsay, if offered to prove that he ran away from the creepy man following him, but it would not be hearsay, if it were offered to prove Trayvon was afraid of Zimmerman. See Rule 801(c).

(2) Even if a statement is offered to prove the truth of the matter asserted in the statement, for example that he ran away from the creepy man following him, it’s admissible pursuant to the present-sense-impression exception to the hearsay rule since it’s “a statement describing or explaining an event or condition while the declarant [Trayvon] was perceiving the event or condition, or immediately thereafter.” See Rule 803(1).

(3) That statement and others like it also would be admissible to prove the truth of the matter asserted in the statement pursuant to the excited utterance exception to the hearsay rule since it’s “a statement relating to a startling event or condition made while the declarant [Trayvon] was under the stress of excitement caused by the event or condition.” See Rule Rule 803(2).

FYI: Trayvon’s statements to Dee Dee would not be admissible pursuant to Rule 804(2) as statements made under belief of impending death unless he believed his “death was imminent.” I do not doubt he believed that at some point but probably not until after he dropped the phone.

The usual manner lawyers and trial courts follow in deciding whether reasonably foreseeable and important statements will be admissible at trial, such as Dee Dee’s testimony regarding what Trayvon said to her during their phone conversations, is to bring them up via a defense motion in limine (i.e., at the beginning) before trial to exclude them. Both sides would brief the issue and argue it at a hearing outside the presence of the jury and the judge would decide whether to grant or deny the motion.

For the reasons I have stated, I believe the judge will permit the prosecution to present Trayvon’s statements to Dee Dee describing Zimmerman stalking him. Those statements will be admissible at the immunity hearing and the jury trial in support of the prosecution’s claim that Zimmerman was the aggressor.

In Mixon v. State 59 So.2d 38 (Fla. 1952), for example, as our own Boar_d_Laze mentioned, the Florida Supreme Court affirmed the defendant’s conviction for second degree murder where there was evidence that the defendant armed himself, pursued the victim, and shot him. The court stated:

“The appellant and the man he later admitted killing had an altercation while the appellant was sitting in his jeep, the other man standing at the side of the vehicle. The appellant drove to his home nearby where he procured a revolver, while his adversary continued along the highway, afoot. The appellant, accompanied by his wife and their young daughter, then drove in the same direction until he overtook his former antagonist when both stopped. … Were we convinced that the final encounter was of such nature that the issue of self defense was properly introduced and the appellant’s blame should therefore be judged by the amount of force he used in resisting his victim, we think the testimony would have been admissible. But the facts believed by the jury point too strongly to a deliberate pursuit by appellant, after the original difficulty had ended and the parties had separated. The law is quite clear that one may not provoke a difficulty and having done so act under the necessity produced by the difficulty, then kill his adversary and justify the homicide under the plea of self defense. (emphasis supplied)”

I expect the prosecution will argue that it does not matter who threw the first punch because Zimmerman provoked the confrontation by pursuing Martin in a menacing manner after dark in the rain in a vehicle and then on foot without ever identifying himself. Martin had a right to defend himself against that aggression and, if he ever hit Zimmerman, he did so lawfully. Zimmerman, of course, was not justified in using deadly force.

As I have said many times, I believe George Zimmerman will be found guilty of murder in the second degree.

193 Comments | Character Assassination, Crime, Defense Strategy, Evidence, Exceptions, Excited Utterance, George Zimmerman, Hearsay Rule, Murder 2, Present Sense Impression, Self-defense, Stand Your Ground, Trayvon Martin | 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

Will George Zimmerman Testify?

August 18, 2012

Many of you have asked questions regarding whether George Zimmerman must testify at the immunity hearing or at trial. Others, particularly Zimmerman supporters, have expressed an opinion that he can prevail without having to testify because he already said everything that needs to be said to the police.

The quick answer is he is not legally required to testify, but he cannot possibly win unless he does testify. How else does he get his self-defense claim into evidence?

Yet, at the same time, he probably cannot win because of his many conflicting statements.

First, every defendant in a criminal case has a 5th Amendment right to refuse to testify and, if they decide not to testify, the jury will be instructed that it cannot assume anything regarding why the defendant chose not to testify.

The reason for this rule is that a defendant may decide not to testify for any number of possible reasons and it would be unfair to allow the jury to speculate as to the “real” reason. In addition, a defendant cannot be punished for exercising a constitutional right.

Second, every defendant has a right to testify, if he decides to do so. The decision to testify or not to testify is his and his alone. The defendant’s lawyer can recommend for or against testifying, but it’s up to the defendant to make that decision.

Third, if the defendant testifies, he can be cross examined regarding everything he said and the Court will grant a prosecutor wide latitude to cross examine.

Therefore, George Zimmerman gets to decide whether he will testify at the immunity hearing and the trial.

Next, let’s take a look at all of his statements to date and group them into two categories: statements to police officials during custodial interrogations and statements to other people.

Statements to police officials during custodial interrogations are admissible at trial,

(1) if he was advised of his 5th Amendment right to remain silent and his 6th Amendment right to contact an attorney and have him present during the interrogation; and

(2) he voluntarily, knowingly and intelligently decided to waive or give up those rights and answer questions.

This is the foundational requirement that the prosecution must satisfy to introduce a defendant’s custodial statement into evidence. It is based on Miranda v. Arizona, 384 U.S. 436 (1966). I have reviewed the discovery and believe all of his custodial statements satisfy the Miranda Rule and are admissible subject to the hearsay rule.

Statements to others, including the Sean Hannity interview, have no foundational argument like Miranda and are admissible, subject to the hearsay rule.

Now we get down to the difficult part of the analysis, which is understanding the hearsay rule.

Let us begin with a definition. Evidence Rule 801(c) defines hearsay as follows:

“Hearsay” is a statement, other than one made by the declarant (i.e., the person who made the statement) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

For example, if Blue Shenanigans were to testify that George Zimmerman (i.e., the declarant) told her he knew Trayvon Martin was dead before the police arrived at the scene, and the prosecution offered it during its case in chief to prove that he knew Trayvon Martin was dead before the police arrived at the scene (i.e., the matter asserted in the statement), the statement would be hearsay.

Right?

Nope, because even though it meets the definition of hearsay, the rules of evidence carve out a huge exception to the rule that’s called an Admission by a Party Opponent. See Rule 801(d)(2). This rule specifically defines admissions by a party opponent as non-hearsay.

This is the way it works. George Zimmerman is a party to this case because he is the defendant. The party opponent is the State of Florida, which is represented by the Angela Corey and her team of prosecutors.

Pursuant to this rule they can introduce into evidence any statement by Zimmerman that they choose, including his custodial statements to the police, assuming they satisfy the Miranda rule, which they apparently do.

Notice that they are not required to introduce any of his statements and the defense has no say in which statements they introduce and which statements they leave out.

This means that all of the exculpatory statements he made to support his claim of self-defense are inadmissible hearsay, unless the prosecution decides to offer one or more of them as an admission by a party opponent.

Needless to say, the prosecution is not going to do him any favors and introduce any of his exculpatory statements and, since the defense cannot introduce them, the judge will not be able to consider them during the immunity hearing and the jury will never get to hear them at the trial.

But that’s not fair, you say.

That complaint happens in every courtroom across America every day, but it’s the law.

This is why, as a practical matter, George Zimmerman must take the stand and testify.

Can he refer to his exculpatory statements while he is testifying?

No, because they are hearsay.

What happens after he finishes telling his side of the story by answering his lawyer’s questions on direct examination?

The prosecutor who cross examines him will confront him with every statement he made to a police official or to any other witness it knows about that is inconsistent with or contradicts a statement he made while testifying on direct examination.

Given the number of times he has made improbable, inconsistent and contradictory statements, the cross examination could last several days.

I know this because I have done it to witnesses many times.

Cross examination by confronting witnesses with their prior inconsistent statements is one of the most effective and powerful tools a trial lawyer has to utterly destroy a witness.

The key to cross examining George Zimmerman will be not to beat him up so bad that the jury begins to feel sorry for him.

This is why it is so vitally important for suspects to keep their mouths shut when they are questioned by police. They cannot help themselves because their exculpatory statements will be inadmissible hearsay at trial. They can only hurt themselves by saying something that the prosecution uses to damage their case pursuant to the admission-by-a-party-opponent rule.

479 Comments | Admissions by a Party Opponent, Crime, cross examination, Defense Strategy, Evidence, Fifth Amendment Right to Remain Silent, George Zimmerman, Hearsay Rule, Impeachment by Prior Inconsistent Statement, Murder 1, Self-defense, Stand Your Ground, Trayvon Martin | Permalink
Posted by masonblue

Zimmerman: Did the Defense Change Strategy?

August 17, 2012

Up until Mr. O’Mara’s press conference on Monday afternoon, the defense had been claiming that George Zimmerman was not following Trayvon Martin.

Instead, he was coincidentally running in the same direction looking for a street name and an address to provide to the dispatcher so that he could relay it to the officer en route.

Unfortunately for the defense, however, Zimmerman jogged right on past the front doors and garage doors of several townhouses directly in front of him and slightly to his right on Twin Trees Lane. Yes, the addresses were in plain view.

When the dispatcher picked up on his heavy breathing and asked him if he were following Martin, he answered, “Yes.”

The dispatcher said, “We don’t need you to do that,” and Zimmerman responded, “Okay.” Nevertheless, he continued to breathe hard as though he continued running for another 15 seconds or so.

He told the police he went past the open space between the two rows of townhouses, where he had seen Martin disappear, to the next street over. That street is Retreat View Circle, but as it fortuitously turned out, he did not have to find a street sign to discover that because he recognized it as the street he lives on.

Will wonders never cease.

He told the police he looked around but could not find any addresses to give the dispatcher, so he decided to retrace his steps intent on returning to his truck.

There is no shortage of addresses that would have been visible there although none of them were close to where he had last seen Martin.

As he approached the T intersection where the N/S sidewalk between the two rows of townhouses intersects the cut-through sidewalk between Twin Trees Lane and Retreat View Circle, he told the dispatcher to tell the officer en route to call him when he reached the neighborhood. Then he terminated the call.

He said Martin materialized suddenly out of the gloom standing on the N/S sidewalk a few feet south of the intersection and asked him if he had a problem.

When he said, “No,” and reached for his phone to call 911, Martin said, “Now you do,” and punched him in the nose stunning him and knocking him to the ground.

He said Martin then jumped on top of him and straddled him as he was lying on his back and began repeatedly slamming the back of his head into the concrete sidewalk. As he was about to lose consciousness, he grabbed his gun and shot Martin in the chest killing him.

Aside from the absurd claim that he was searching for a street name and an address to provide the officer en route — there are only three streets and he had lived in the neighborhood for three years and patrolled it for several months — there is a major timing problem and Martin’s body was found approximately 40 feet south of the T intersection..

Approximately two minutes went by before he encountered Martin.

Where was he and what was he doing?

I believe he lied to the police when he told them he did not follow Martin and when he claimed Martin assaulted him at the T intersection.

I believe the evidence at trial will show beyond any doubt that he was hunting Martin with the intent of restraining him until the officer arrived.

At the press conference on Monday, Mark O’Mara conceded that this is not a stand-your-ground case. He said it is a traditional self-defense case. He still intends to seek a dismissal of the murder charge at an immunity hearing, but he will not be arguing that Zimmerman had a right to stand his ground.

Sounds to me that the defense has decided to jettison Zimmerman’s claim that he did not follow Martin and did not stray south of the T intersection.

But if he admits to hunting Martin, isn’t the jury likely to conclude that he was hunting with the intent of physically restraining Martin?

Recall how he so indelicately expressed his frustration earlier during the call with the dispatcher,

“These assholes, they always get away.”

Did he not intend to make certain that Martin was one “asshole” who was not going to get away?

My question for y’all is, assuming I am right, will this decision help or hurt the defense?

Specifically, can giving up the obvious lie and apologizing for it, transform Zimmerman into a credible witness, or just make matters worse?

384 Comments | Crime, Defense Strategy, George Zimmerman, Murder 2, Self-defense, Stand Your Ground, Trayvon Martin, video reenactment of Martin shooting | Permalink
Posted by masonblue

Zimmerman: The Power of Circumstantial Evidence

August 14, 2012

Because there are no eyewitnesses to the shooting except George Zimmerman, who claims he shot and killed Trayvon Martin in self-defense, the prosecution will have to rely on circumstantial evidence to prove beyond a reasonable doubt that George Zimmerman did not kill Trayvon Martin in self-defense.

Unfortunately, Florida does not define circumstantial evidence other than to call it “indirect” evidence. See Wadman v. State, 750 So.2nd 655 (FL 1999).

Washington State, where I practiced law for many years, defines direct and circumstantial evidence as follows:

Evidence may be either direct or circumstantial (WPIC 5.01).

Direct evidence is that given by a witness who testifies concerning facts which he or she has directly observed or perceived through the senses.

Circumstantial evidence consists of proof of facts or circumstances which, according to common experience permit a reasonable inference that other facts existed or did not exist.

The law makes no distinction between the weight to be given to either direct or circumstantial evidence. One is not necessarily more or less valuable than the other.

Wikipedia has a good discussion of circumstantial evidence:

A popular misconception is that circumstantial evidence is less valid or less important than direct evidence. This is only partly true: direct evidence is popularly, but mistakenly, considered more powerful. Many successful criminal prosecutions rely largely or entirely on circumstantial evidence, and civil charges are frequently based on circumstantial or indirect evidence. Much of the evidence against convicted American bomber Timothy McVeigh was circumstantial, for example. Speaking about McVeigh’s trial, University of Michigan law professor Robert Precht said, “Circumstantial evidence can be, and often is much more powerful than direct evidence”. The 2004 murder trial of Scott Peterson was another high-profile conviction based heavily on circumstantial evidence.

Indeed, the common metaphor for the strongest possible evidence in any case—the “smoking gun”—is an example of proof based on circumstantial evidence. Similarly, fingerprint evidence, videotapes, sound recordings, photographs, and many other examples of physical evidence that support the drawing of an inference, i.e., circumstantial evidence, are considered very strong possible evidence.

In practice, circumstantial evidence can have an advantage over direct evidence in that it can come from multiple sources that check and reinforce each other. Eyewitness testimony can be inaccurate at times, and many persons have been convicted on the basis of perjured or otherwise mistaken testimony. Thus strong circumstantial evidence can be a more reliable basis on which to determine a verdict.

In response to a Zimmerman supporter who posted recently here that circumstantial evidence can support conflicting conclusions, I said,

Anything is theoretically possible and the nature of circumstantial evidence is such that each individual circumstance in a chain of circumstances might indicate more than one possibility. However, when examined as a totality of circumstances, they add up to only one possibility.

Put another way, the more splainin’ that Zimmerman has to do by resorting to ridiculous extremes like, I was walking in the same direction as Martin but not following him because I was looking for a street name and an address to give the dispatcher, the more unlikely his story becomes. Especially when he has lived in the neighborhood for three years, patrolled it as the neighborhood watchman on a regular basis for months, and he walked right past townhouses on TTL with the addresses on them in plain view, ignored them, and never provided the dispatcher with an address. It doesn’t take any intelligence to figure out that he was never looking for an address.

Step by inexorable step he lies and lies and lies.

What is he concealing?

He wasn’t out there exercising in the rain.

He was hunting.

The answer is obvious to anyone with a functioning brain cell.

The burden of proof is beyond a reasonable doubt, not beyond all theoretical doubt.

I am not going to detail every lie that we have revealed and discussed at length because I want to go macro on y’all and look at the big picture.

However, if you want to review the evidence to date, I recommend you watch this video prepared by our very own Whonoze.

Is there a discernible pattern to his lies that reveals his intent or are his lies mere random occurrences that happen due to chance?

Consider, for example, his stubborn insistence that Trayvon Martin suddenly came out of the bushes next to a townhouse or materialized out of the gloom on the N/S sidewalk a few feet south of the intersection and confronted him as he was on the sidewalk cut-through between TTL and RVC supposedly minding his own business returning to his vehicle parked on TTL.

Some who post here and at other internet sites contend that we must take GZ at his word and cannot look at other evidence (i.e., the circumstantial evidence) to determine if he is telling the truth and, if not, discern his intent.

Sorry, but that is not how trials work.

GZ claims that TM sucker punched him knocking him to the ground and then he jumped on him and started beating his head into the sidewalk and punching him repeatedly in the face.

Aside from the lack of physical injuries that would be consistent with such a claim, the location of the fight is inconsistent with the location of TM’s body. That is, if GZ is telling the truth, the body and the location of the fight should be in the same place, but they are not and he has no explanation for that other than he kind of sort of stumbled after TM hit him. Yet, that explanation only gets him a little less than halfway to the location of the body and various items found within a few feet of it, such as his phone, the earbuds, the can of iced tea, the Skittles, and the spent casing.

We have to ask ourselves what does the circumstantial evidence tell us regarding the fight that ended with TM’s death? That is, what can we reasonably infer from the evidence at the scene.

The initial conclusion is GZ lied about the nature and extent of Martin’s attack because his injuries do not support his story and his conflicting claim regarding where and how Martin confronted him tells us he changed his story during the walk-through video the next day when he realized there were no bushes at the scene behind which Martin could have been hiding.

What do these lies suggest?

They suggest GZ went looking for Martin in the area between the two rows of townhouses and found him where the shooting occurred.

If that is what happened, why would he lie about it?

The obvious conclusion is that he did not want to admit that he went hunting for Martin and found him.

Why is that a problem?

Maybe it has something to do with his statement, “These assholes, they always get away, fuckin’ coons.”

Hmmnn. That sounds like GZ was determined to make sure this “asshole” did not get away.

Why would GZ lie about Martin jumping him?

Could it be because he knew an aggressor cannot claim self-defense?

A pattern is apparent in these lies. They all appear to be motivated by a desire to cover up that he was the aggressor who hunted down TM and attempted to detain him, but TM did not submit to his authority willingly. A struggle ensued in which GZ sustained some minor injuries and he shot and killed TM without legal justification.

This is the incredible power of circumstantial evidence because, ultimately, the explanations GZ offers for each item of evidence become increasingly strained until they degenerate into irrelevant and irritating whining.

As I have said before, he is his own worst enemy and his conviction of the crime of Murder in the Second Degree will materialize out of his own lyin’ mouth and the abundant circumstantial evidence.

322 Comments | Admission of Guilt, Audiologist, Blood Spatter Analysis, Crime, Crime Scene Investigation, DNA Testing, Forensic Science, George Zimmerman, Martin's Sweatshirts in Zimmerman Case, Murder 1, Self-defense, Stand Your Ground, Trayvon Martin, video reenactment of Martin shooting | 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

Should Mark O’Mara Withdraw as Counsel for George Zimmerman?

July 18, 2012

I believe Mark O’Mara should withdraw as counsel for George Zimmerman because he is not acting in his client’s best interests. Instead, he appears to be acting in what he perceives to be his own best interests by constantly talking to the press, making himself available for interviews by mainstream media TV, and making questionable pitches for dollars on his website to fund his effort to represent his client.

There also is the disturbing matter of whether he knew his client had raised a substantial sum of money from contributions by donors at his client’s original funding website (therealgeorgezimmerman.com).

On April 12th, Mark O’Mara filed Defendant’s Motion for Reasonable Bail asserting that his client was indigent.

On April 14th, during a recorded jailhouse conversation (Call 30) with someone identified as Scott.

George Zimmerman said.

GZ: Mark O’Mara is going to try and get me declared indigent. I told him that I didn’t think that was a possibility because you know there was the one possible transfer I tried to make and it got stopped, you know the $37. [37 is code for $37,000]

He said ‘well that doesn’t matter. Right now you are not working, not providing an income for your family, you are probably never going to be employable for the rest of your life. So basically they will declare you indigent.

Male: ah ah

GZ: So he knows about that. um But he …

Male: Does he know about the volume

GZ: No

Male: Ok

GZ: And uh …

Male: I’d like to keep that with us

GZ: Ok I think so too.

At the bond hearing on April 20th, Mark O’Mara did not disclose the $37,000. Instead, he represented to the court that his client had no money.

As we subsequently discovered, during the period between the phone call and the hearing, Shellie Zimmerman transferred $155,000 from the internet account into George Zimmerman’s personal account at a credit union and then she transferred that money into her personal account and his sister’s account, all pursuant to George Zimmerman’s explicit instructions. Therefore, on the date of the bail hearing, there was very little money in the internet account and George Zimmerman’s personal account. The money was transferred back into his personal account after he got out of jail. He then proceeded to spend $36,000 paying off some bills and purchasing two $300 smart phones with a two-year prepaid Verizon account and a two year internet access account, among other things.

Shellie Zimmerman testified by telephone at the bail hearing claiming she and her husband were indigent. She denied any knowledge of how much money, if any, had been donated to the internet account.

She has since been charged with perjury.

Judge Lester revoked George Zimmerman’s bond for misrepresenting his assets at the bond hearing.

In my opinion, any reasonably experienced and competent lawyer at this point would have backed off on the full court press to promote a false image of his client as a young and somewhat naive person “who was fearful and experienced a moment of weakness and who may also have acted out of a sense of betrayal by the system.” See Judge Lester’s Order Setting Bail below.

Nevertheless, at the second bail hearing on June 29th, Mark O’Mara attempted to excuse his client’s misconduct by saying he was exactly that.

Judge Lester did not buy it. Although he set bail in the amount of $1,000,000 based on Florida law that left him no other alternative (thereby brushing aside O’Mara’s presentation of character evidence as irrelevant) in his order setting bail, at page 2, he said:

Under any definition, the Defendant has flaunted the system. Counsel has attempted to portray the Defendant as being a confused young man who was fearful and experienced a moment of weakness and who may also have acted out of a sense of betrayal by the system. Based on all of the evidence presented, this Court finds the opposite. The Defendant has tried to manipulate the system when he has been presented the opportunity to do so. He is an adult by every legal definition; Trayvon Martin is the only male whose youth is relevant to this case. The Defendant has taken courses in criminal justice with the intention of becoming a police officer, an attorney, a judge, or a magistrate like his father. He has been arrested before, having entered and successfully completed a pretrial intervention program. He has also obtained an injunction and had an injunction obtained against him. The injunction against him has obviously been dissolved at some point for him to have validly obtained a permit to carry the firearm used to shoot Trayvon Martin. He also had the wherewithal to set up a website to collect donations to help defray the costs of his defense. Thus, before this tragic incident, the defendant had a very sophisticated knowledge of the criminal justice system over and above that of the average, law abiding citizen.

One would think, he would have breathed a sigh of relief that his client bailed out and reconsidered the wisdom of placing his client’s character in evidence before the court of public opinion.

Nope. He doubled down and while doing so, he forgot to appeal and seek a stay from Judge Lester’s order directing the prosecution to release incredibly damaging evidence to the public; specifically, W9′s claim that George Zimmerman (her cousin) had sexually molested her multiple times over a period of 10 years when she was 6-16 years old. Zimmerman was two-years older.

That evidence exploded on the public two days ago and now he’s going to appear with George Zimmerman on the Sean Hannity Show to discuss the case and no doubt trash W9.

Meanwhile, he made the following pitch on his website:

For those who have given in the past, for those who have thought about giving, for those who feel Mr. Zimmerman was justified in his actions, for those who feel they would do the same if they were in Mr. Zimmerman’s shoes, for those that think Mr. Zimmerman has been treated unfairly by the media, for those who feel Mr. Zimmerman has been falsely accused as a racist, for those who feel this case is an affront to their constitutional rights — now is the time to show your support.

He also filed Defendant’s Verified Motion to Disqualify Trial Judge alleging that Zimmerman fears getting a fair SYG hearing before Judge Lester because the judge said bad things about him and is obviously prejudiced against him.

As the prosecution noted at page 8 in its Response to the Defendant’s Verified Motion to Disqualify Trial Judge,

On June 1st, he told Anderson Cooper of CNN News:

There is no question that they knew about the money, actually in a previous correspondence to the judge, we had acknowledged that. The question of whether or not they had presented it properly, I think it was somewhat misleading to the court. I’ve gone over that with George.

On June 3rd, the Orlando Sentinel reported:

O’Mara acknowledged the problem his client faces in securing a new bond. “There is a credibility question that needs to be explained away,” he said. O’Mara added that “Zimmerman’s credibility has been tarnished and he will have to rehabilitate it.”

On June 4th, he posted the following statement on his website (gzlegalcase.com):

While Mr. Zimmerman acknowledges that he allowed his financial situation to be misstated in court . . . The audio recordings of Mr. Zimmerman’s phone conversations while in jail make it clear that Mr. Zimmerman knew that a significant sum had been raised by his original funding website.”

On June 29th, ABC Action News reported:

This prosecutor has made a very specific showing that his case is strong,” O’Mara said. “It was important for us to counter that.”

Since he makes no valid legal argument in support of the relief he requests, I expect Judge Lester will deny the motion.

Filing a frivolous motion did not help his client.

The Rules of Professional Conduct mandate that a lawyer shall represent the best interests of the client to the best of his ability.

I see a lawyer who has placed self-interest in surfing media attention to fame and fortune above the best interests of his client. He acts like a moth driven to the flame and I see nothing good coming out of this for himself and his client. I therefore think he needs to withdraw.

George Zimmerman appears to be the quintessential difficult client who probably wants and may even be directing O’Mara to do these things. But public revulsion and disgust are not in his best interest.

He needs to shut up and so does his lawyer.

99 Comments | Bail Hearing, Crime, George Zimmerman, Murder 2, Perjury, Playing the Race Card as a Defense Strategy, Representing the Difficult Client, Self-defense, Shellie Zimmerman, Stand Your Ground, Trayvon Martin, Uncharged Misconduct | Permalink
Posted by masonblue

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