Dzhokhar Tsarnaev has a right to allocution

March 15, 2015

Various articles in the Huffington Post, the National Monitor and the International Business Times have discussed whether Dzhokhar Tsarnaev will testify during his trial.

I do not believe he will testify in the guilt/innocence phase or the penalty phase of his trial because that would open him up to cross examination, which he dares not risk. This does not mean, however, that he cannot speak to the jury. He has the right to allocution, which means he has the right to speak before sentence is pronounced. All defendants have this right.

In the first death penalty case that I tried, I had my client read a letter that he wrote to his daughter expressing regret for what he had done and for how that had affected their relationship. He broke down several times but eventually managed to get through it. The jury spared his life and several jurors told me afterward that they voted to spare his life because of his genuine tearful regret.

I am certain Judy Clarke and David Bruck have considered using allocution as a means for Dzhokhar Tsarnaev to speak to the jury about sentencing without being cross examined. Whether the tactic will succeed depends on whether he genuinely expresses remorse and regret.

The keyword is ‘genuine.’ Anything less and he will almost certainly be sentenced to death.


Michael Dunn’s sentencing must be continued to avoid constitutional error

March 11, 2014

Tuesday, March 11, 2014

Good morning:

Judge Russell Healey said yesterday that he will announce his decision on Friday, regarding the defense motion to continue Michael Dunn’s sentencing until after the retrial of the murder charge.

For the following reasons, I believe he must grant the motion to avoid constitutional error.

Briefly in review, the jury convicted Dunn of three counts of attempted second-degree murder and one count of shooting into a vehicle. It hung 9-3 in favor of convicting him for shooting and killing 17-year-old Jordan Davis.

Dunn was represented at yesterday’s hearing by his trial counsel, Cory Strolla, who is withdrawing because Dunn is out of money. He will be replaced by a public defender.

He argued that the sentencing must be continued because anything Dunn says at his sentencing can be used against him at the retrial.

The prosecution has objected to the continuance on the ground that Dunn has waived his right to remain silent by testifying at trial.

Although the answer is relatively simple, Judge Healey appears to be struggling a bit with this motion.

Let’s break it down :

The Fifth Amendment states in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

First, as long as Dunn remains in legal jeopardy of conviction on the murder charge, he can assert his right to remain silent, even if he has previously testified.

Second, Dunn also has a right to allocution, which means he has a right to be heard before the court imposes the sentence.

Third, if he exercises his right to allocution, he sacrifices his right to remain silent. He cannot be compelled to make that choice and that is the precise problem he faces.

Therefore, Judge Healey should grant the defense motion.

I am surprised that the prosecution has failed to see this issue.

My question for Angela Corey is why build constitutional error into the record at this point? Dunn is not going anywhere.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

This is our 928th post and donations are lagging. We work hard to keep you informed by filling in the blanks between the lines. After 30 years in the trenches, I am familiar with all of the rules and strategies prosecutors and defense counsel utilize. Experience counts and most of my predictions have been accurate.

Adjusting and fine tuning to dial in the white fear and racist corruption frequencies in the Florida courts took some doing, but I am on track now.

If you appreciate what we do, please make a donation.

We cannot pay our bills without your support.

Fred


Proof of premeditation requires proof of reflection on decision to kill and discussion of the Arias allocution

May 21, 2013

Tuesday, May 21, 2013

Good afternoon:

To prove premeditation, a prosecutor must prove beyond a reasonable doubt that the defendant intended to kill the victim and, upon reflecting on the decision to kill, decided to go ahead and kill the victim. This process can occur quickly and only requires more than a moment in time to take place. Therefore, time is not particularly important to proving premeditation.

A prosecutor must rely on circumstantial evidence to prove premeditation, unless the defendant has admitted that he or she premeditated the murder. The most powerful circumstantial evidence of the defendant’s intent is the defendant’s conduct. The greater the length of time between formation of intent to kill and the act that causes death, the more likely the defendant reflected on the decision to kill and decided to complete the act.

Many of us, including me, have speculated that GZ premeditated the death of Trayvon Martin. However, a prosecutor must restrict himself to charging what he believes he can prove beyond a reasonable doubt. This is why GZ is charged with second degree murder. It is a conservative charging decision based on the uncertainty of convincing all of the jurors beyond a reasonable doubt that GZ reflected on a decision to kill Trayvon Martin and decided to go ahead and do it.

Now consider the Jodi Arias case. Seems to me that there is overwhelming evidence of careful planning before the murder, and the use of two weapons (knife and gun) to carry it out, including a coup de grĂ¢ce, eliminates any doubt in my mind that she had opportunities to reflect on her decision to kill and decided to complete the act.

Jodi Arias just finished addressing the jury (her right to allocution) and the Court is now instructing the jury.

What did you all think about her allocution and what do you think the sentence will be?

Keep in mind during the jury deliberation that any mental illness qualifies as a potential mitigating factor. Insanity is a legal definition that requires proof that, due to a mental illness, a defendant could not distinguish between right and wrong at the time of the act. Any effort to conceal the commission of the crime and/or the person’s role in committing the crime normally defeats the insanity defense. Arias is not claiming insanity.

Closing arguments will begin at 1:30 pm PDT.

_________________________________________________

I hate to hassle people for money, but contributions have been lagging this month.

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


%d bloggers like this: