Frederick Leatherman Law Blog

Friday, May 10, 2013

Good morning:

Lady 2 Soothe provided the inspiration for this article with the following comment about Shellie Zimmeerman and her Fifth Amendment right to remain silent.

Does anyone know if this is true?

Legally, as GZ’s wife she could take the 5th.

However, if she takes that 5th she has to take the 5th for every single question they ask because if she even answers one question, just one, the protection of the 5th is gone. Which means, she would then have to answer every question she took the 5th on previously.

Here is my answer:

Pursuant to the Fifth Amendment, she can refuse to answer any question, if she believes that her answer might tend to incriminate her.

Since she is represented by counsel in a pending criminal case, her lawyer will probably be at her side to advise her whether to assert the 5th and refuse to answer.

She would not waive the 5th by answering just one question, or even several. She can assert it at any time, but if she were to assert it to avoid cross examination regarding a matter that she had testified about on direct examination, for example, the judge would remedy the situation upon request by striking her testimony and ordering the jury to disregard it.

Given the pending perjury charge and her potential criminal liability for aiding and abetting her husband to conceal the commission of the murder, we can reasonably expect her to refuse to answer any questions that delve into those matters. Therefore, I do not realistically see her being called to the stand. I will add parenthetically that it’s improper for a lawyer to call a witness to the stand to provoke the witness into taking the 5th in front of the jury. Where there is any reasonable likelihood that a witness will take the 5th, or should consult with a lawyer about taking the 5th before answering, a judge will not allow the examination to begin in the presence of the jury. Instead, she will excuse the jury and allow counsel to proceed with questions. If the witness asserts the 5th at some point, the judge will terminate the inquiry and prohibit the witness from testifying.

Shellie will no doubt appear with her lawyer who will likely advise Judge Nelson that he has advised Shellie to assert the 5th to all questions except her name and relationship to the defendant. Since she clearly has a valid reason to assert the 5th, I expect Judge Nelson will excuse her from testifying.

However, there is one legitimate way to prevent her from taking the 5th and Bernie de la Rionda has the power to do it. Since they both want something from each other, they can play let’s make a deal. For example, he could offer to dismiss the perjury charge, if she agrees to testify truthfully for the prosecution. The feds have written the playbook and all he needs to do is follow it. Here’s the way it works.

The agreement would have to be conditioned on her voluntarily submitting to an interview and polygraph test, if requested, to determine if she answered questions truthfully. He also would have to promise her use immunity for any information that she discloses in the interview and at trial, if he calls her to the stand. Use immunity means he could not use anything she said during the interview or the trial, so long as she tells the truth. Because of the use-immunity promise, Shellie would no longer be in danger of incriminating herself, if she cooperates and testifies. That means she could not assert the 5th and refuse to answer.

That still leaves the issue of the husband-wife privilege. Boar de Laze, Searching Mind and I have about beaten that issue to death without reaching agreement. BDL believes the defendant can prevent her from testifying against him by claiming the privilege. SM and I believe the privilege may not apply, if the testifying spouse (Shellie) is an uncharged coconspirator with her husband in a plot to conceal the commission of the murder and to evade prosecution by fleeing the jurisdiction.

It would make little sense for BDLR to play let’s make a deal with Shellie Zimmerman, if the defendant can prevent her from testifying against him. Therefore, he will not open the bidding unless he is certain that the privilege will not apply.

Finally, BDLR is an apex predator, not Santa Clause. He is not likely to seek Shellie’s cooperation or accept it, if offered, unless he believes that he needs it to convict the defendant. Allowing her to skate on a slam-dunk perjury charge without getting something that he needs in return is not going to happen. Keep in mind, however, that because they must prove their cases beyond a reasonable doubt, prosecutors fear they must prove their cases beyond all doubt to be on the safe side. Having Shellie as a backup insurance policy to help disprove self-defense beyond a reasonable doubt has to have some value even if she would be ab admitted perjurer.

I have give a lot of thought to this issue and as usual when I am in doubt, I come back to a fundamental rule, Keep It Simple, Stupid. The prosecution has the phone logs for the defendant’s calls as well as his text messages and emails. I’m pretty certain they contain devastating evidence. If that’s true, I would recommend not playing let’s make a deal with Shellie. Lying to the court while under oath at a bail hearing regarding a material matter is a serious matter. As a matter of principle, people who commit that crime should not be permitted to walk away without consequence because they frustrate and often defeat the truth finding process that is so essential to the due administration of justice and the legitimacy of our courts.

Thursday, May 9, 2013

Today I am featuring my better half, Crane Station, who posted the following comment to my article today explaining what happens at a penalty phase in a death penalty trial.

Just wanted to say that I think it is way too soon and premature to put a lot of stock in the initial interview with Jodi Arias. I am not sure if she is wanting to be a volunteer or not, in other words. It seems very odd that she said these things, without 1.) checking with and discussing with her family and 2) her lawyers. Just within moments of the verdict she says this; it may or may not be what her wishes are after consideration.

Other thing, did her lawyers leave the courthouse without speaking to her? Thing is, they still represent her. Even if they don’t like her, they have certain duties, and if they cannot do things in their client’s best interest, should they not withdraw? IANAL, but if I were hers, she would not have given that interview. Don’t get me wrong, I think the crime was egregious. But this is a different issue.

Begs the ethical question and dilemma in general: Client is convicted. Sentence is either LWOP or death. Client wants to ask the jury for death. Does the lawyer continue to represent the client, and argue to the jury for death?

SHORT ANSWER: I do not believe the judge would permit counsel to withdraw, assuming they attempted to do so, because that would require a lengthy continuance and appointment of new counsel.

Apparently there was a brief hearing today that was closed to the public. The record has been sealed and no one is talking about what happened. Sounds like a gag order.

I suspect it had to do with the Arias interview and what to do about it.

The events today make Crane Station’s question even more relevant.

The Eligibility Hearing, or aggravation hearing as it is commonly called, has been continued to next Wednesday, May 15th at 10 am PDT.

Most people who are convicted of a death penalty eligible crime fall off the edge of the world into a depression that is deeper, darker and more hopeless than anything they have experienced or imagined. They simply cannot cope with it and there is no one to whom they can turn for a kind thought or a hug, except the lawyer.

They want to die and they want to die now, but even if they beg to be sentenced to death, the jury grants their request, and they refuse to appeal, it still takes at least a year before the execution date finally arrives.

The day to day countdown toward the at-first distant execution date and the horrific formal, impersonal and antiseptic ritual of the 24-hour countdown is a form of torture beyond description.

They are not thinking about that when they first say they would prefer death over life without parole. Once sentenced to death, the sentence cannot be undone, unless the appeal is successful. This rarely happens.

Experience has taught us that most volunteers, as we call them, eventually change their minds no matter how certain they may have been.

Jodi Arias’s lawyers left the building after the verdict and that is not acceptable because that is a time when the client is most vulnerable.

According to the reporter she contacted, she reached out to him before the verdict and told him that she wanted to talk to him immediately after the verdict. He met her in the salleyport and interviewed her in front of eight burly guards.

He did not contact or attempt to contact her lawyers to get permission. For the record, I don’t believe he was required to do that, but I think he should have at least let them know about it beforehand so that they could have attempted to persuade her not to do it.

The lawyers have apparently lost control over her and I am not a bit surprised.

Serving life without possibility of parole is not something that most people would look forward to, but there are opportunities for self-improvement and to form strong mutually supporting relationships with others in the same situation. This is why many volunteers change their minds.

Unless her lawyers plan to ask the jury to sentence her to death, which I do not believe any responsible and ethical death penalty lawyer should do, they now have a problem because there is a substantial likelihood that she will be asking for death when they ask the jury to spare her life.

Frankly, I do not believe they acted responsibly or in the client’s best interests when they basically abandoned her after the verdict was announced. That shows not only an appalling lack of concern about her emotional and mental state, it constituted and an abandonment of the lawyer’s duty to look after the best interests of the client by reviewing the penalty phase procedures scheduled for the following day. If they had done this, they probably would have prevented the interview.

By their inaction, they have created an un-ringing the bell problem.

The issue of whether to honor the client’s request and advocate for the death penalty when there is so much evidence that defendants change their minds is hotly debated among death penalty lawyers. I would never do it under any circumstances.

I decided to be a death penalty lawyer to save lives. Enabling an extremely depressed person to commit suicide by death sentence is not acceptable to me.

Those who will do it constitute a very small minority and unwelcome part of our tribe.

I saw a lawyer do that in Washington State despite having amassed a substantial amount of mitigating evidence, including evidence of brain damage that caused him to suffer from obsessive compulsive disorder and an inability to control his anger through rational thought. When he lost his temper, he literally could not stop short of violence.

The lawyer was a fellow member of the Death Penalty Committee of the Washington Association of Criminal Defense Lawyers. We were aghast when he informed us that he had decided to ask the jury to kill his client, despite the powerful mitigation evidence that we believed would cause a jury to spare his life.

We tried but could not dissuade him. We even attempted to intervene in the trial as a friend of the Court to inform the jury about the mitigating evidence so that they would not be deprived of a complete an accurate picture of the defendant before sentencing him.

We argued that the jury had a right to know the truth before sentencing a man to death, but the trial judge refused to let us intervene.

We appealed to the State Supreme Court, but they refused to consider our appeal.

The jury sentenced the defendant to death and he refused to appeal. After a brief and summary review of the trial and the voluntariness of the defendant’s decision to ask for a death sentence, the State Supreme Court affirmed the conviction and death sentence.

The State Supreme Court refused to review or consider whether defense counsel’s refusal to present mitigation evidence and his advocacy for the death penalty constituted ineffective assistance of counsel in violation of the the 6th Amendment.

I never spoke to that lawyer again and he never attended another meeting.

Wednesday, May 8, 2013

Good morning:

I write today to comment on the FBI’s involvement in the ongoing investigation in Cleveland into the kidnapping of three young women Amanda Berry, Gina de Jesus and Michelle Knight.

Fortunately, all three are in good health, according to medical personnel. They have been interviewed by the FBI.

Berry’s 6-year-old daughter, who was born during her captivity, was also freed and in good health.

Three suspects have been arrested: Ariel Castro (52) and brothers Pedro Castro (54), and Onil Castro (50).

The three women were held captive in Ariel Castro’s home. FBI agents have been searching Ariel Castro’s house for the past 24 hours. They recovered ropes and chains that were used to restrain the women at various times.

No bodies have been found.

The FBI appears to have taken over this investigation and they cannot do that unless there is a jurisdictional basis to do so.

For example, in the Green River Killer investigation in the Seattle area, the FBI did not officially take over the investigation until the remains of two of the GRK’s victims, who were last seen in the Seattle area, were discovered in a suburb of Portland, OR. The jurisdictional basis was probable cause to believe that the GRK violated federal law by kidnapping the two women in the Seattle area and transporting them across the state line into Oregon.

Mere kidnapping is not a federal offense and would not have provided a basis for federal criminal jurisdiction without the transportation across the state line into Oregon.

Since the FBI could not have taken over the investigation of the three suspects in Cleveland, unless they have probable cause to believe that they violated federal laws relating to transporting kidnapping victims across state lines or sex trafficking, I am assuming this investigation involves interstate criminal activities that we do not yet know about.

I contacted the FBI’s Media Coordinator in Cleveland, Special Agent Vicki Anderson, and asked her what is the jurisdictional basis for the FBI entering the case.

She said she could not “comment at this time.”

Look for an official announcement from the FBI in the relatively near future confirming that it has taken over the investigation and stating the jurisdictional basis for the decision.

EDIT: I forgot to mention that once the three suspects are transferred into federal custody, they are entitled to appear before a United States Magistrate Judge for an initial appearance. That could happen this afternoon.

Then we’ll get to review the complaint and the affidavit of the FBI agent in charge of the investigation. The affidavit will reveal the basis for probable cause on the charge and jurisdictional issue.

_________________________________________________

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

Fred

Tuesday, May 7, 2013

I feel a fever coming on.

I’m tremblin’

Here’s Xena:

And here’s Papa:

Whew!

Mountains are starting to feel it too.

If Charles Ramsey lived at the Retreat at Twin Lakes, Trayvon Martin might be alive today.

Sunday, April 28, 2013

Good morning:

Crane and I are counting down the hours to 9 am, Tuesday when Judge Nelson will commence the hearing that we have been waiting for since BDLR filed his epic Shakespearean put down of Mark O’Mara. In case you missed it Friday, O’Mara filed a super whiny Reply to State’s Response to Defendant’s Motion for Sanctions Against State Attorney’s Office for Discovery Violations. In a five-page reply neck deep in irony, he asked Judge Nelson to strike BDLR’s response to his motion for sanctions for discovery violations citing rules of professional conduct that require lawyers to tell the truth and not disparage other parties and their lawyers. Imagine that! This request is from the man who specializes in using his media mouthpieces at the Orlando Sentinel to keep repeating his message misrepresenting the evidence in Trayvon’s case while demonizing him, his family, and Dee Dee without a shred of evidence to support his false accusations. We about laughed ourselves sick when we read his whiny and fundamentally dishonest reply

The following matters have been noted for the hearing:

By the Defense:

1. Defendant’s demand for specific discovery, dated March 26, 2013, regarding any and all data regarding any downloads from any phone or phone number connected to George Zimmerman or his wife Shellie, etc. from the State of Florida

2. Defendant’s motion for sanctions against State Attorney’s Office for discovery violations, dated March 25, 2013

3. Defendant’s motion for sanctions against State Attorney’s Office for payment of attorney fees and costs, dated March 26, 2013

4. Defendant’s motion to unseal information listed as confidential information within a court filing or, in the alternative, demand for specific discovery, dated April 11, 2013

5. Motion to determine confidentiality of court records in opposition to defendant’s motion to unseal, dated April 12, 2013 (filed by Benjamin L. Crump, Esq. Jarian N. Lyons, Esq., Counsel for the Estate of Trayvon Martin)

6. Defendant’s demand for specific discovery, dated April 25, 2013, regarding any and all data, regarding any downloads or reports from any phone or phone number connected to Trayvon Martin from the State of Florida

7. Defendant’s demand for specific discovery dated April 25, 2013, regarding any and all cleaned up, edited and/or enhanced version(s) of any and all recorded 911 calls listened to by Tracy Martin from the State of Florida

8. Defendant’s motion to allow additional witness disclosure.

Regarding the defendant’s petition for a writ of certiorari and the thunderstorm of motions for sanctions and terms:

I previously described them as “ridiculous” and I see no reason to change my opinion.

The defendant’s effort to obtain judicial permission to depose Ben Crump does not make any sense. He did not witness the shooting; he conducted an investigation of Trayvon’s death on behalf of his clients, Tracy Martin and Sybrina Fulton. As a result of that investigation, he contacted Dee Dee and scheduled a telephonic interview. To avoid the possibility of being the only witness to what she said during the conversation, he arranged to have other people present when the call took place and he placed Dee Dee on a speaker phone so that everyone present could hear both sides of the conversation.

To obtain judicial approval to depose Crump, the defense must show, among other things, that no other witness except Crump can answer its questions. The presence of the other witnesses in his office during the call, whom the defense has not deposed, means the defense request to depose Crump must be denied.

Another requirement the defense must satisfy is that Crump’s answers would be relevant and admissible at trial. O’Mara has asserted that his answers would be relevant and admissible, but he has not provided a reason to support that conclusion. Why Crump’s testimony might be relevant is not apparent. Since Dee Dee talked to Trayvon, she is the witness with relevant and admissible testimony, not Crump.

Crump’s efforts to locate Dee Dee and interview her are attorney work product that is protected from disclosure. His conversations with his clients are protected from disclosure by the attorney client privilege.

Moreover, his effort to investigate George Zimmerman as the person who unlawfully killed Trayvon places his interests in opposition to O’Mara. This is another bar to the deposition.

Therefore, O’Mara’s argument to obtain judicial approval to depose Ben Crump not only appears to be doomed, it appears that it never had a chance to succeed. That is why I described it as ridiculous and a waste of time.

Time is running out for O’Mara with the trial date little more than 30 days away. I believe he is finally beginning to realize that his smoke and mirrors defense cobbled together out of half-truths, false statements and misstatements ain’t gonna make it to the courthouse on June 10th.

With the confirmation that the defendant is going to waive his statutory right to an immunity hearing on Tuesday, it should finally be clear to even the most devout believers that the defendant is going down.

O’Mara has invested a considerable amount of time and energy riding his client’s case to fame and fortune. I do not doubt his anger and disappointment. Nevertheless, blaming BDLR and Judge Nelsons for his own failures is the way his client behaves.

He needs to grow up.