Afro-Peruvian emperor wears no clothes

April 24, 2013

Wednesday, April 24, 2013

BDLR has filed a motion asking Judge Nelson to order the defendant to appear at the April 30th hearing and state on the record that he is waiving his right to the immunity hearing.

H/T to Southern Girl 2 for providing the link to BDLR’s motion

He also asks Judge Nelson to issue an order that she will not permit the immunity hearing to take place during the trial or after it.

I support this motion. In fact I published three posts in early March warning that this needed to be done to avoid significant legal problems that might otherwise come up forcing a retrial of the case, if the jury convicted the defendant.

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

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

3. Post trial immunity hearings are a terrible idea

This motion is an example of a prosecutor taking action to protect the record from a collateral attack by a new lawyer representing the defendant after he is convicted and sentenced to prison and arguing that the defendant is entitled to a new trial and a statutory immunity hearing because he never waived his right to that hearing and did not know or consent to Mark O’Mara waiving it for him.

BDLR also wants Judge Nelson to clarify the record regarding the possible merger of the statutory immunity hearing with the trial, which O’Mara had suggested as an alternative to holding the hearing during the last two weeks of April, so that the record shows that she considered and denied O’Mara’s request more than a month before trial. Such an order would foreclose an argument by O’Mara that he never waived the statutory immunity hearing and reasonably believed and relied to the defendant’s detriment on the two matters being combined.

Best to clarify that current ambiguity in the record so that it does not result in reversal and remand for an immunity hearing and a new trial, if the defendant loses the immunity hearing.

Therefore, I believe BDLR’s motion is timely and necessary to protect the record.

Although I believe O’Mara decided long ago that he had no chance to win the immunity hearing because the defendant could not withstand cross examination due to his many conflicting and inconsistent statements. I think he decided that he did not want to formally admit in open court on the record that he was waiving his client’s right to the statutory immunity hearing because he was concerned about the effect that his waiver would have on his efforts to substantially increase donations to his “innocent” client’s internet defense fund and win the trial in the court of public opinion. To use a poker analogy, folding your hand at the last minute by waiving the hearing establishes that you were bluffing when you kept insisting that you had a winning hand.

Not exactly the ideal position for the defense to be in on the eve of trial.

BDLR is going for the jugular with this motion to clarify for all the world to see that the Afro-Peruvian emperor wears no clothes.

_____________________________________________________

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

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

Thank you,

Fred


Why would an Afro-Peruvian defendant want an all white jury

March 2, 2013

Saturday, March 2, 2013

Good morning.

I write today to warn everyone regarding a probable defense effort during jury selection to exclude all potential jurors who are black, notwithstanding the recent defense claim that the defendant is Afro-Peruvian, whatever the hell that means.

The simple truth is that this defendant self-identified as white until after he killed Trayvon Martin. When he was accused of racially profiling Trayvon, he rather conveniently decided that calling himself White Hispanic and more recently Afro Peruvian would dispel any suspicions that the killing was racially motivated.

Instead, given the convenient timing of his declarations and his confusion of race with nationality unintentionally showcases his intellectual limitations and the desperate lengths to which he will go to deny that he is a racist.

He doth protest too much, methinks.

Therefore, do not be surprised if the defense attempts to use its peremptory challenges to exclude black jurors from the jury.

Recall, that unlike a challenge for cause, a lawyer does not have to explain the basis for a peremptory challenge. Recall too, that the SCOTUS prohibited the use of peremptory challenges by prosecutors to systematically exclude blacks from serving on juries with black defendants in Batson v. Kentucky, 476 U.S. 79 (1986), because such systematic exclusion violates a defendant’s Fourteenth Amendment right to Equal Protection of the laws. See also Miller-El v. Dretke, 545 U.S. 231 (2005).

We have an interesting wrinkle in this case because, if it happens, the defendant will be the party systematically excluding jurors because they are black or non-white, whereas, in Batson and Miller-El the prosecution systematically excluded blacks violating the defendant’s right to equal protection of the laws.

The issue the prosecution must be ready to argue and Judge Nelson must be ready to decide before jury selection is whether the Batson and Miller-El prohibition against the prosecution’s discriminatory use of peremptory challenges applies equally to a defendant.

I believe the answer is “yes,” because to rule otherwise would constitute official judicial approval of discrimination against black jurors in jury selection, so long as the defendant is doing the discriminating. I do not see that happening, if for no other reason than blacks have just as much right to serve on juries as whites.

Consider this language from Justice Blackmun’s majority opinion in JEB v. Alabama ex rel. TB, 511 U.S. 127, 128-129 (1994), in which the Court extended the Batson rule to gender.

In Batson v. Kentucky, 476 U. S. 79 (1986), this Court held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. The Court explained that although a defendant has “no right to a `petit jury composed in whole or in part of persons of his own race,’ ” id. , at 85, quoting Strauder v. West Virginia, 100 U. S. 303, 305 (1880), the “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria,” 476 U. S., at 85-86. Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U. S. 400 (1991); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. McCollum, 505 U. S. 42 (1992).

Although premised on equal protection principles that apply equally to gender discrimination, all our recent cases 129*129 defining the scope of Batson involved alleged racial discrimination in the exercise of peremptory challenges. Today we are faced with the question whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race. We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.

(Emphasis added)

White defendants certainly do not have a right to an all white jury. As Justice Blackmun said, they have a right to a jury selected in a non-discriminatory manner.

Therefore, the selection process must be non-discriminatory and that must necessarily apply to all parties and to the Court.

A final thought to consider:

If the defendant is the race-blind Afro-Peruvian that he claims to be, then he ought to submit his case to an all black jury.

What do you think the odds are that he would agree?

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


%d bloggers like this: