I am featuring two excellent comments today by Towerflower regarding the validity of the defendant’s CCW license. I thought it wasn’t, but Toweflower has presented a strong argument that it was valid.

Towerflower ought to know since he or she is licensed to teach the course on firearm safety.

I am working on a post about the State’s motions in limine and should have it up in a couple of hours.

Fred

Comment 1

Jun, I have read it and gone through the process. His charges were downgraded to resisting arrest without violence. It is a misdemeanor, only a charge of violence would have prevented him. It was dismissed after his diversion program and it would have not prevented him. Only a felony conviction would have. 4 years passed from the time of the arrest to his CCW.

His restraining order did have a expiration date, 1 year, and it was never renewed by either party. This was also in 2005 and 4 yrs passed.

This is the “short” printed list from the State of Florida for disqualifiers:
*The physical inability to handle a firearm safely.
*A FELONY conviction (unless civil and firearm rights have been restored by the convicting authority).
*Having adjudication withheld or sentence suspended on a felony or misdemeanor crime of violence unless 3 years have elapsed since probation or other conditions set by the court have been fulfilled.
*A conviction for a violent crime in the last 3 years, either misdemeanor or felony.
*A conviction for violation of controlled substance laws or multiple arrests for such offenses.
*A record of drug or alcohol abuse.
*2 or more DUI convictions within the previous 3 yrs.
*Being committed to a mental institution or adjudged incompetent or mentally defective.
*Failing to provide proof of proficiency with a firearm.
*Having been issued a domestic violence injunction or an injunction against repeat violence that is CURRENTLY IN FORCE.
*Renunciation of US citizenship.
*A dishonorable discharge from the armed forces.
*Being a fugitive from justice.

I can teach the training class. Taking the class is not a guarantee that the state will pass you. They do not issue the CCW, they only provide a certificate of safety training which is part of the application process given to the state. The certificate of training is a 8 1/2 x 11″ certificate that one could frame and in no way can be confused for a CCW. A safety class would never refund their time or cost of materials if someone didn’t pass the State’s process. Classes SHOULD include a shooting session so that the Instructor can verify that the person can safely handle and shoot a gun, the only thing I can think of is that they didn’t charge him for ammo and refunded that portion. The cost of the written material is about $11 and he paid $90 for the course, with the Instructor pocketing the rest.

More importantly the State would never, never, never, issue someone the CCW and then investigate the file. I said in the previous comments I had an issue come up in mine where they said I was lacking in the file. When I called they wanted the NRA Instructor number of my lead trainer which they said should be on the certificate of training. My training was not in the run of the mill safety class that most take. I took the Instructor training in which I now have the credentials to teach the CCW safety classes. Those certificates did not have a place for the instructor to put his License # where the safety classes do. In the end all I needed to do was send them a copy of my Instructor credentials, that had my Instructor # on it, and they THEN issued my CCW.

There is nothing in his file saying they sent him any notifications at a later date. His file also contains inquiries from the Sanford PD and the Florida Dept. of Civil Rights that happened after the shooting of Trayvon and the State’s response to them. This can be found in the previous thread where I say how to find the FDLE inquiry and what was in his file. There is no mention that he received a refund from the State or that his CCW was suspended or revoked.

Don’t get me wrong, I don’t like Fogen any more than the rest of you do but I researched this early on and there was nothing that we know about him that would have prevented him from obtaining the license.

Comment 2

Xena, One of the things told to me when I took the training for the Instructor credentials was to make sure that I kept all information on the people that I train. One Instructor said he scanned the information to reduce paperwork space. They explained that LE always comes back to the Instructor of the class to see what they can find out or remember about the student, there is no time limit on when they will go back. This is a common practice when the shooter is a CCW holder, once again their investigation into it isn’t unusual and I was told this a couple of years before the TM shooting. If an Instructor gave a certificate to a student they felt was not ready it will cost the Instructor their credentials.

On the statement of the Instructor he said he purges his records every 2 years and didn’t have fogen’s information anymore. Since he took the class in 2009 it sounds like the paper shredders were working overtime.

Also that pdf I referenced people to look at is his CCW file. In it they also place inquiries about a holder. There have been 3, first was by the Sanford PD, then Florida’s Civil Rights Division, and the last one was from the FDLE. All of them were after the shooting of Trayvon, not one was a federal agency….unless it was after the FDLE request.

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.

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.

Good morning:

The jury convicted Jodi Arias of premeditated first degree murder yesterday. Next up is the sentencing. The same jury that convicted her of premeditated murder will decide whether to impose the death sentence.

The hearing is scheduled to start at 1 pm, PDT (4 pm EDT).

Jodi Arias has stated that she wants to be sentenced to death. She has a right to testify and may request that sentence. She may have changed her mind, however.

There is no premeditated murder, no matter how egregious, that automatically results in a death penalty.

Court will reconvene at 1:00 pm PDT for the Eligibility Phase of the trial. This phase is also called the aggravation hearing because the prosecution will have to prove an aggravating circumstance beyond a reasonable doubt. The aggravating circumstance alleged in the indictment is that the premeditated murder was “especially cruel.”

The prosecution will probably call the Medical Examiner who performed the autopsy to testify regarding how long the victim remained conscious after she initiated the assault and the extent to which he may have suffered pain and emotional distress before losing consciousness and dying.

The more extreme his suffering and emotional distress, the more likely the jury will decide that the murder was especially cruel.

The defense can call its own expert or rely on cross examining the State’s expert.

Both sides will have an opportunity to argue whether the prosecution proved beyond a reasonable doubt that the premeditated murder was especially cruel.

The Court will instruct the jury as follows regarding the meaning of the term “especially cruel.”

The term “cruel” focuses on the victim’s pain and suffering. To find that the murder was
committed in an “especially cruel” manner you must find that the victim consciously suffered
physical or mental pain, distress or anguish prior to death. The defendant must know or should
have known that the victim would suffer.

Potential consequences:

If the State does not prove beyond a reasonable doubt that an aggravating circumstance
exists, the judge will sentence the defendant to either life imprisonment without the
possibility of release, or life imprisonment with the possibility of release after 25 [35] years.

If the jury unanimously decides beyond a reasonable doubt that an aggravating circumstance
does exist, each juror will decide if mitigating circumstances exist and then, as a jury, you will
decide whether to sentence the defendant to life imprisonment or death. If the sentence is
life imprisonment then the judge will sentence the defendant to either life imprisonment
without the possibility of release from prison, or life imprisonment with the possibility of
release from prison after 25 [35] years.

“Life without the possibility of release from prison” means exactly what it says. The
sentence of “life without possibility of release from prison” means the defendant will never
be eligible to be released from prison for any reason for the rest of the defendant’s life.

If the jury concludes that the prosecution proved beyond a reasonable doubt that the premeditated murder was especially cruel, the sentencing will proceed to the Penalty Phase.

The judge will then read the following instruction to the jury:

While all twelve of you had to unanimously agree that the State proved beyond a
reasonable doubt the existence of a statutory aggravating circumstance, you do not need to
unanimously agree on a particular mitigating circumstance. Each one of you must decide
individually whether any mitigating circumstance exists.

You are not limited to the mitigating circumstances offered by the defendant. You must
also consider any other information that you find is relevant in determining whether to
impose a life sentence, so long as it relates to an aspect of the defendant’s background,
character, propensities, record, or circumstances of the offense.

The defendant bears the burden of proving the existence of any mitigating circumstance
that the defendant offers by a preponderance of the evidence. That is, although the
defendant need not prove its existence beyond a reasonable doubt, the defendant must
convince you by the evidence presented that it is more probably true than not true that such
a mitigating circumstance exists. In proving a mitigating circumstance, the defendant may
rely on any evidence already presented and is not required to present additional evidence.
You individually determine whether mitigation exists. In light of the aggravating
circumstance[s] you have found, you must then individually determine if the total of the
mitigation is sufficiently substantial to call for leniency. “Sufficiently substantial to call for
leniency” means that mitigation must be of such quality or value that it is adequate, in the
opinion of an individual juror, to persuade that juror to vote for a sentence of life in prison.
Even if a juror believes that the aggravating and mitigating circumstances are of the same
quality or value, that juror is not required to vote for a sentence of death and may instead
vote for a sentence of life in prison. A juror may find mitigation and impose a life sentence
even if the defendant does not present any mitigation evidence.

A mitigating factor that motivates one juror to vote for a sentence of life in prison may
be evaluated by another juror as not having been proved or, if proved, as not significant to
the assessment of the appropriate penalty. In other words, each of you must determine
whether, in your individual assessment, the mitigation is of such quality or value that it
warrants leniency in this case.

The law does not presume what is the appropriate sentence. The defendant does not
have the burden of proving that life is the appropriate sentence. The State does not have the
burden of proving that death is the appropriate sentence. It is for you, as jurors, to decide
what you individually believe is the appropriate sentence.

In reaching a reasoned, moral judgment about which sentence is justified and
appropriate, you must decide how compelling or persuasive the totality of the mitigating
factors is when compared against the totality of the aggravating factors and the facts and
circumstances of the case. This assessment is not a mathematical one, but instead must be
made in light of each juror’s individual, qualitative evaluation of the facts of the case, the
severity of the aggravating factors, and the quality of the mitigating factors found by each
juror.

If you unanimously agree there is mitigation sufficiently substantial to call for leniency,
then you shall return a verdict of life. If you unanimously agree there is no mitigation, or the
mitigation is not sufficiently substantial to call for leniency, then you shall return a verdict of
death.

Your decision is not a recommendation. Your decision is binding. If you unanimously
find that the defendant should be sentenced to life imprisonment, your foreperson shall sign
the verdict form indicating your decision. If you unanimously find that the defendant should
be sentenced to death, your foreperson shall sign the verdict form indicating your decision.
If you cannot unanimously agree on the appropriate sentence, your foreperson shall tell the
judge.

And there you have it.

Go here to read the full set of pattern jury intructions for the Eligibility and Penalty Phases.

Livestream Link

_________________________________________________

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

Disparity

According to a May 6, 2013 report from the Death Penalty Information Center (DPIC) that relies on data through January of this year, 30% of the executions in America take place as a result of death sentences imposed in just 15 of a total 3148 counties in the US. The study considers data from 1976 on, a period that is called the “modern era of capital punishment” (that is, post-Gregg v. Georgia).

To put it succinctly, one-third of all executions come from less than one-half of one percent of all of the counties in the United States. DPIC also reports that “Since the death penalty was reinstated in 1976 through to April 2013, almost 82% of the executions have been in the South.” Furthermore, even though death sentences are handed down as a result of convictions in only a handful of counties within a given state, the expense is shared by all of the taxpayers in that given state.

Each of the 37 states that still has capital punishment has only one death chamber, at the maximum security state prison. A state-by-state list is here. How much does it cost to kill someone in one of these chambers, and is it worth it, then? Consider the 2011 California study:

California

Assessment of Costs by Judge Arthur Alarcon and Prof. Paula Mitchell (2011, updated 2012)

The authors concluded that the cost of the death penalty in California has totaled over $4 billion since 1978:
$1.94 billion–Pre-Trial and Trial Costs
$925 million–Automatic Appeals and State Habeas Corpus Petitions
$775 million–Federal Habeas Corpus Appeals
$1 billion–Costs of Incarceration

The authors calculated that, if the Governor commuted the sentences of those remaining on death row to life without parole, it would result in an immediate savings of $170 million per year, with a savings of $5 billion over the next 20 years.

The 187-page California study begins by noting that California taxpayers have shelled out “roughly $4 billion” to fund “no more than 13 executions.” The study authors further point out that a severe backlog will delay more than 700 cases, for more than 20 years.

Since the money argument fails completely, what arguments are left? Surely, state-sanctioned homicide, given its immense expense, must be a deterrent, right? Actually, the data not only fails to support this theory, the opposite is true: murder rate decline occurs in regions where the death penalty is decreasing. According to a 2011 report released by the FBI:

On October 29, the U.S. Justice Department released the annual FBI Uniform Crime Report for 2011, indicating that the national murder rate dropped 1.5% from 2010. This decline occurred at a time when the use of the death penalty is also decreasing nationally. The Northeast region, which uses the death penalty the least, had the lowest murder rate of the 4 geographic regions, and saw a 6.4% further decrease in its murder rate in 2011, the largest decrease of any region. By contrast, the South, which carries out more executions than any other region, had the highest murder rate.

The top 15 counties for executions map is shown here.

Also, there have been 306 post-conviction DNA exonerations nationwide, and there is no question that innocent people have been executed in the US. Ray Krone is the 100th American to be sentenced to death and then later exonerated. To browse the profiles for DNA exonerations, go here.

Even though it is common knowledge that innocent people on death row have been exonerated through DNA test results, some prosecutors continue to try to deny access to this testing. Amazing, isn’t it, that prosecutors would push forward with a conviction and a death sentence, knowing that it may not only be wrongful, but that there is a likelihood that someone who did commit a violent crime remains free and will commit further violent crimes?

Related:

The Death Penalty in 2012: Year End Report

Defense argues against death penalty in shootings, claiming that the death penalty is arbitrary and unconstitutional.

Accused Aurora shooter James Holmes to plead not guilty by reason of insanity (Guardian)

Arkansas Republican endorses death penalty for children

Breaking News: Execution Stayed in Mississippi Willie Manning maintains his innocence. He was convicted on hair and ballistics testing. “This past week, the FBI notified the state that there were flaws in both the hair and ballistics evidence that was used to convict Manning. The FBI also agreed to do the DNA testing.”

Cross posted from Firedoglake