Short and Sweet

January 12, 2013

Saturday, January 12, 2013

I wrote Short and Sweet to follow-up on my article yesterday titled, Keep It Simple, Stupid.

The defense in the Trayvon Martin murder case apparently does not have any credible evidence that he was a martial-arts trained aggressive bully who assaulted people. I say “apparently” because I am certain we would have heard about it, given the defense effort to try its case in the court of public where defense counsel can testify with impunity, rumor and innuendo are admissible, and the prosecution cannot cross examine or introduce any evidence. Since evidence that Trayvon was a martial-arts trained aggressive bully who assaulted people would not be difficult to find, if it existed, I believe we can reasonably conclude that such evidence does not exist.

The one thing we do know from reviewing the complaint filed by the security/investigation company against the defendant, his wife and the defendant’s attorney is that its investigators found nothing useful for the defense and could not even confirm a rumor that a client’s daughter could have purchased marijuana from Trayvon.

Instead, the prosecution apparently has a mountain of evidence that Trayvon was peaceful and non-violent.

This evidence is not admissible unless the defense opens the door by claiming that Trayvon was the aggressor and initiated the confrontation by sucker-punching the defendant in the nose, knocking him to the ground.

Difficult to imagine the defense will not make this claim during its opening statement, since this is an important and necessary part of the defendant’s self-defense claim that he provided to the police and to a national audience during the Hannity interview. Therefore, I think we can reasonably assume that the defense will open the door during its opening statement and the prosecution will be introducing evidence of Trayvon’s non-violent and peaceful disposition during its case-in-chief.

On the other side of the coin, the defendant has shown that he has a violent temper and a willingness to assault others when he loses his temper. That uncharged-misconduct evidence is not admissible under rule 404(b), unless the defense opens the door by claiming he is a non-violent and peaceful person or a person with good character.

The defense will make a bad mistake, if it opens this door, but I think they will do it.

Why?

Because the defendant still appears to be driving the bus and he is as clueless as clueless gets.

Katie bar the door, if they do.


Keep it Simple, Stupid

January 11, 2013

Keep it simple, stupid or KISS is a fundamental rule of trial practice. It is so important that I am seriously considering adding it as a new Fourteenth Commandment to the Thirteen Commandments that I wrote about on September 25, 2012.

I credit Sheila Dunn for inspiring me to write about this rule today. She shocked me yesterday when she criticized Piranha Mom’s recent article as pro-Zimmerman. She shocked me again when she said the blog was turning pro-Zimmerman. Quite a few of you were similarly shocked and most of the responses, including my own, fell into the are-you-nuts category.

I reconsidered and decided that probably she was warning us that we are violating the KISS rule by entertaining theories that unnecessarily complicate and weaken the prosecution’s case. I responded a second time stating that the prosecution is not likely to attempt to prove something that it cannot prove. That is, we are not the prosecution team and we are not subject to the KISS rule. Specifically, Piranha Mom was not asserting that her theory was true. She was discussing the theory and the evidence that supports it.

It may be true and it may not be true. We may find out that it’s true or we may not. Right or wrong the exercise is useful because it forces us to sharpen our critical thinking skills by examining the evidence again from another perspective.

When we engage in a theoretical exercise, we also have to consider the rules of evidence. We need to consider what evidence is admissible and what evidence is inadmissible. In this situation, we need to consider whether and to what extent is uncharged misconduct admissible in a criminal trial.

I wrote an article about this subject on December 18, 2011. The title is Criminal Law: Admissibility of Uncharged Misconduct Evidence. Here it is, including the hilarious clip from the film, My Cousin Vinnie.

Two what?

Author’s note: I refer to the Federal Rules of Evidence for the sake of convenience because most states have adopted them verbatim, or with only slight changes. They have even retained the same numbering system for ease of reference.

In criminal trials, prosecutors often seek to introduce evidence that a defendant has committed misconduct other than that charged in the information or indictment.

Why?

Answer: Since prosecutors are required to overcome the presumption of innocence by proof beyond a reasonable doubt, they fear they will not be able to convict a defendant without relying on uncharged misconduct evidence, especially in weak cases.

Rule 401 of the Federal Rules of Evidence (FRE 401) provides:

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

FRE 402 provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

No one disputes that, under some circumstances, such evidence is relevant, for example, to show a defendant’s state of mind where his state of mind is an issue in a case.

Let us say that a 31-year-old defendant is charged with statutory rape in a hypothetical jurisdiction where the crime prohibits a person over the age of 25 having sex with a person under the age of 16. He claims that he did not know and had no reason to know that she was underage because she told him she was 19 and she appeared to be that old. Thus, the issue is whether the defendant knew she was under the age of 16 .

Let us further say that the prosecutor can prove that the alleged victim met the defendant when she approached him in a parking lot outside a convenience store and asked him to buy her a pack of cigarettes because she was not old enough to buy them. He agreed, and after he gave her the cigarettes, they spent some time together that ended several hours later when her father discovered them in flagrante delicto while parked outside the family house. A person must be 16 in this jurisdiction to buy cigarettes legally and it is a misdemeanor to purchase cigarettes for a person under the age of 16.

Should the prosecutor be permitted to introduce evidence about the cigarette purchase?

Answer: Yes, the incident is relevant under FRE 402 because it establishes that he knew she was under the age of 16, and relevant evidence is admissible under FRE 401.

What about other instances of uncharged misconduct? Are there other rules that apply?

Answer: Yes, FRE 403 and 404.

FRE 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Would the cigarette purchase evidence be inadmissible under FRE 403?

Answer: No, because the probative value of the evidence to prove that he knew she was under the age of 16 is high and the danger of unfair prejudice is low. There is little danger that the evidence will confuse the issues, mislead the jury, or waste time.

Note that any analysis under FRE 403 requires a weighing of probative value versus prejudicial effect.

FRE 404 provides:

(a.) Character evidence generally.

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1.) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution.

(2.) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

(3.) Character of witness – Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b.) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

(emphasis supplied)

FRE 404(a) states the general rule, which prohibits the use of character evidence (e.g., the defendant is a liar) to prove that the defendant lied on a particular occasion relevant to the case. I believe this rule makes sense because no one lies all the time with the possible exception of the obamanable one, of course. Such evidence would invite the jury to basically presume the defendant lied at the time in question, rather than basing its decision on the evidence, and that would violate the presumption of innocence.

FRE 404(b) begins with a general prohibition against the use of uncharged misconduct. The second sentence sets forth the exceptions.

Uncharged misconduct is admissible to prove:

1. motive,

2. opportunity,

3. intent,

4. preparation,

5. plan

6. knowledge,

7. identity, or

8. absence of mistake or accident.

In our hypothetical, the defendant’s uncharged misconduct (i.e., purchasing cigarettes for the underage girl) would be admissible to show knowledge (i.e., that he knew she was less than 16-years-old) and absence of mistake (i.e., that he did not mistake her to be 16-years-old, or older).

As before, the judge would have to balance the probative value of the evidence against its potential prejudicial effect pursuant to FRE 403, but we all know how that will turn out.

Whether any one or more of these factors will be present in any given case depends on what the prosecution must prove to convict a defendant and whether the prosecutor knows about and can prove prior uncharged misconduct.

Note: FRE 404 applies when a prosecutor seeks to introduce uncharged misconduct evidence during its case-in-chief (i.e., when the prosecution is presenting its case). FRE 609, which governs the admissibility of a defendant’s prior conviction, applies during the defense case after the prosecution rests, if the defendant testifies (i.e., if the defendant testifies, the prosecution gets to introduce the prior conviction to impeach or undermine the defendant’s credibility. The prosecution cannot introduce the prior conviction, if the defendant does not testify). Prior felony convictions are admissible, if less than 10-years-old, subject to the judge weighing the probative value versus the potential prejudice to the defendant, unless the crime involves dishonesty or false statement. Even misdemeanors that involve dishonesty or false statement are admissible under this rule.

Some examples:

1. Prior drug use should be excluded in a drug case since it merely shows propensity to use drugs, which has low probative value and high prejudicial value and it does not fall into any of the 8 exceptions listed in FRE 404(b).

2. A prior felony drug conviction should not be admissible as impeachment, if the defendant testifies, because its potential prejudicial value outweigh its probative value, However, some jurisdictions permit it on the ground that a drug conviction involves dishonesty or false statement.

3. So-called signature crimes are admissible under FRE 404(b) to prove identity of the perpetrator.

Conclusion: The admissibility of uncharged misconduct evidence is one of the most complicated and litigious issues in criminal law. This essay is a brief overview of the subject to explain what it is about in laymen’s terms. Should you or someone you know be involved in a case in which this issue comes up, educate yourself with this article and use it to intelligently discuss the issue with your lawyer. As always, rely on your lawyer. If you do not trust your lawyer, hire another one.


Zimmerman: Is Mark O’Mara Clueless as well as Ineffective?

July 24, 2012

JD, who comments regularly at my site and who provided the invaluable overlay of a Google Earth Satellite photo onto the SPD Total Station diagram of the objects found at the crime scene, asked the following question:

His lawyer [Mark O’Mara] seems to want to make a point that GZ was still 17 at the time the cousin [W9] claims he was 18 and she 16. If none of this ever happened, what’s the point in making that claim?

Statutory rape statutes establish the age of consent, which is usually 16, and provide exceptions based on the age of the other person. In effect, these exceptions establish a sliding scale of criminal liability. For example, no crime would be committed if a 16-year-old boy had consensual sex with a 15-year-old girl.

I am not familiar with the Florida statutes, but O’Mara appears to have been pointing out that, even if W9’s allegation were true, it would not constitute a crime because she and GZ were too close in age.

That ignores her claim that she never consented to sexual contact.

Statutory rape statutes eliminate consent as a defense. Since she did not consent, the statutory rape statutes do not apply.

Assuming her allegations are true, we’re looking at rape and indecent liberties type offenses.

Rape requires proof of penetration “however slight,” and includes digital penetration.

Rape is generally classified into three degrees:

R1: forcible penetration while armed with a weapon;

R2: forcible penetration; and

R3: non-consensual penetration.

A victim is not required to physically resist in order to establish that she did not consent to sexual penetration. In other words, “no” means “no.”

I say “she” because W9 is a female and this article is about her allegations. It’s important to remember that males also can be victims of sex offenses. Jerry Sandusky’s sexual predation is a current example that is fresh in everyone’s mind.

Most date rapes fall into the R3 category where the perpetrator does not use force and the victim does not consent or physically resist.

During my career as a felony criminal defense lawyer, I did not see many cases that started out charged as R3. Instead, cases that started out as R2s and occasionally R1s were bargained down to R3s, due to proof difficulties.

I concede that my legal experience falls into the dreaded category of anecdotal information and I do not know if there are any studies that confirm it. Suffice to say that the R3 category has been a source of continuing debate in our society.

Indecent liberties offenses consist of fondling and may be forcible or non-consensual.

States also have statutes that exempt children from criminal prosecution below a certain age. I am not sure what it is in Florida, probably 10 or 12.

States also have statutes of limitation that prohibit prosecution after a certain time period passes. The states vary quite a bit in the area of sex crimes involving children because children are so reluctant to accuse their abusers until later in life, if at all.

I do not know whether GZ has any possible exposure to criminal charges based on W9’s allegations, given the passage of time.

I did not get the impression that W9 was seeking to have GZ charged with a criminal offense. I think she felt guilty for not reporting the abuse to the police because if she had, that might have changed his life in a way that would not have led to him killing TM.

She wanted the police to know that he is a frightening and intimidating person who lies and uses charm to manipulate and control others. She did not want him to lie, charm and talk his way out of responsibility for killing TM as he had gotten away with sexually abusing her for so many years.

That was the message she wanted to convey.

When O’Mara said GZ was still 17 at the time W9 claimed he was 18 and she 16, he was saying that even if GZ did what she claimed he had done to her, he did not commit a crime.

As with other aspects of this case, O’Mara seems utterly clueless.

Because she was not seeking to have him charged and I do not believe the prosecution is even considering charging him for what he did to her, I am not going to review Florida’s sex crime statutes to determine whether GZ has any potential exposure to criminal liability for rape, statutory rape and indecent liberties.

Such an inquiry and a discussion about it would be irrelevant and distracting. Readers who want to know can always look up the answer by reviewing the Florida Statutes.

Keep in mind that regardless whether the alleged misconduct constitutes a chargeable offense, it will not be admissible during the State’s case in chief pursuant to Rule 404(b). The only way the jury would get to hear about it would be if the defense opened the door by introducing evidence that GZ is a law abiding, peaceful and non-violent person who would not have killed TM, unless it was in self-defense.

Presumably, the defense would never risk opening that door.

As I demonstrated previously, but for O’Mara’s failure to let Judge Lester know that W9 had provided a tape recorded statement to law enforcement accusing GZ of digitally penetrating her vagina and fondling her multiple times during a 10-year period that began when he was 8 and she was 6, the public would not know about W9’s accusation.

He did not do his client any good by failing to keep her allegation from being released to the public.

In my title to this article, I asked if O’Mara was clueless as well as ineffective.

I think we know the answer.


Zimmerman: Oh the Irony of it All!

July 21, 2012

Scales of Justice
image by DonkeyHotey on creative commons, flickr

W9 is George Zimmerman’s cousin. On Monday, July 16th at 11 am, the prosecution released her tape recorded statements to the media in which she accused George Zimmerman and his family of being racially prejudiced against African Americans and George Zimmerman specifically of sexually molesting her multiple times during a 10-year period that began when she was 6 years old and he was 8. She is now 26 and he is 28. The two families have lived in the same community and socialized together often during that period.

She said the molestation incidents involved fondling and digital penetration of her vagina. She said she finally ended the sexual abuse by getting away from him and running out of the house. She told her parents and they told his parents. Due to pressure from her parents and because she feared Zimmerman would hurt her, she decided not to report the sexual abuse to the police. After that Zimmerman was no longer invited to family social events.

She first contacted the police anonymously two days after Zimmerman shot and killed Trayvon Martin, She told them he was racially prejudiced and capable of hurting people.

They interviewed her a second time after he was in jail charged with second degree murder. When they asked her why she had waited so long to report the sexual abuse, she said it was the first time she felt safe.

A virtual tsunami of outrage and disgust swept the country and the world after the media reported W9’s accusations and various news organizations posted her two tape recorded statements on their websites.

Anticipating the public furor that would follow the release of the tape recorded statements, Zimmerman’s defense attorney, Mark O’Mara, posted the following statement on his website:

The defense moved to block the public release of Witness #9’s statement in a motion filed on June 18, 2012 contending “The content of this statement is not relevant to the issues of this case, and it would not be admissible in the State’s case in chief.” The motion further contends that this irrelevant statement should be withheld from public dissemination [pursuant to Florida’s Sunshine Law] because of the substantial risk that public disclosure will lead to widespread hostile publicity which would substantially impair the Defendant’s fair trial rights, and would pose a serious threat to the administration of justice.

That request was denied on July 13, 2012 by Judge Lester. Because there is a [defense] Motion for Disqualification [of Judge Lester] pending, this morning [Monday, July 16th], we asked the prosecution not to release Witness #9’s statement until there was a ruling on the Motion for Disqualification. This is an appropriate request as, should the motion for disqualification be granted, reconsideration of recent rulings by the judge is appropriate. However, the prosecution elected to make the public disclosure anyway.

Did Mark O’Mara handle this matter appropriately, or did he fumble the ball?

For the following reasons, I contend that he fumbled the ball prejudicing his client.

Let’s review the facts, keeping in mind that W9 made two statements. Statement 1 was about race and Statement 2 was about sexual molestation.

1. 05/24/2012: State files a Request for a Protective Order seeking non-disclosure of W9’s statement;

2. 05/24/2012: Defendant’s concurrence;

3. 06/01/2012: Hearing on the Request for a Protective Order;

4. 06/13/2012: Order Denying Request for Protective Order;

5. 06/18/2012: Defendant’s Motion for Reconsideration specifically mentioning W9’s second statement (accusing defendant of sexual molestation), but not describing the subject matter;

6. 06/29/2012: State’s Response to Motion to Reconsider Disclosure;

7. 07/13/2012: Defendant’s Motion to Disqualify (filed at 11:20 am);

8. 0713/2012: Order Denying Motion for Reconsideration (filed @ 12:02 pm). Judge Lester says W9’s statement is admissible and should be released to the media because race may be an issue at trial;

9. 07/16/2012: Defendant’s Motion for Stay of Order Denying Reconsideration (filed at 10:56 am) arguing that the order must be stayed until the Motion to Disqualify is decided because it was filed first.

10. State releases W9’s two tape recorded statements at 11 am.

Keep in mind that neither side wanted to disclose the sex statement in a pleading that could be viewed by the public. Instead, O’Mara referred to statements 1 and 2, without clarifying that they involved different subject matter.

What we got here is . . . failure to communicate.

Judge Lester apparently thought both statements referred to race because he specifically said the statement might be admissible since race might be an issue. I am not surprised that he assumed both statements referred to race because the discovery released to date contains multiple recorded statements by witnesses concerning the same incident or subject matter.

The order was filed at 12:02 pm on Friday the 13th (oh, the irony), approximately 30 minutes after O’Mara filed his Motion to Disqualify. Therefore, he had Friday afternoon, the weekend, and Monday morning until 11 am to obtain an order directing the prosecution to hold off on releasing W9’s statement 2 until the matter could be reconsidered, but he did not git ‘r done.

He also did not appeal the order to the Court of Appeals.

The problem was further complicated by the judge going on vacation this past week and next week. Therefore, O’Mara had to act Friday afternoon. However, even if Judge Lester had been available Monday, he could not have acted on the motion to stop the release of W9’s statement before the prosecution released it, since the motion was filed only 4 minutes before the statement was released.

What should have been done?

An emergency oral motion and argument via conference telephone call on Friday afternoon seems to be the most obvious solution, but it did not happen. Alternatively, an emergency request for a stay before the presiding judge on Monday morning might have worked, or an emergency appeal to the Court of Appeals.

O’Mara did not attempt any of these options.

Will the evidence be admissible at trial?

Not during the State’s case in chief because it does not fall into one of the categories of admissible uncharged misconduct evidence that is admissible pursuant to Rule 404(b). If and only if the defendant were to open the door by introducing evidence that he has a law abiding, peaceful and non-violent nature, would the prosecution be able to march through the open door and confront him with W9’s accusation that he was a child molester. That is extremely unlikely to happen.

Therefore, there is no good reason to believe the evidence will be admitted at trial.

Should W9’s statement have been released to the media?

Probably not, under Florida Freedom Newspapers Inc., v. McCrary, 520 So.2d 32, 35 (Florida 1988) because:

(a) restricting public access to it was necessary to prevent a serious and imminent threat to the administration of justice;

(b) no alternative, other than a change of venue would protect Zimmerman’s right to a fair trial; and

(c) closure would be effective to protect Zimmerman’s right to a fair trial, without being broader than necessary to accomplish that purpose.

How much damage has been caused by the release of the statement?

How does one unring a bell rung round the world? The damage to Zimmerman’s defense is incalculable and the parties will not know how far and wide it may have spread until they attempt to select a jury.

Will they be able to select a jury?

Yes, I believe they will be able to eventually seat a jury of people who claim not to know about W9’s allegation or, if they do, they will claim to be able to disregard it in deciding whether the State has proven Zimmerman guilty of murder in the second degree beyond a reasonable doubt.

Sayin’ it’s so, don’t mean it’s so.

If he is convicted, will this be an issue on appeal?

Not likely. If they are able to seat such a jury and it convicts Zimmerman, a reviewing court will assume the jury followed the law and did not consider W9’s allegation in deciding the case.

If he is convicted, could this be an issue raised as an ineffective assistance of counsel claim in a state or federal habeas petition?

No, for the same reason.

Conclusion

This was an avoidable mishap that never should have happened. Mark O’Mara bears the responsibility for letting this issue slip through his fingers. But for being so busy cranking out his groundless Motion to Disqualify Judge Lester, he might have had the time and the energy to correct the problem before 11 am on Monday morning.

The convergence of coincidences is remarkable, however, almost as if this happened according to “God’s Plan.”


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.


Zimmerman: I Love the Smell of Napalm in the Morning

July 16, 2012

The you-know-what hit the proverbial fan today in the George Zimmerman case.

The prosecution released W9’s damning account of being raped and molested by George Zimmerman over a 10 year period that began when she was 6 years old. W9 is his cousin. She is two years younger than him. The rapes she endured involved digital penetration of her vagina and the molestations involved fondling.

She submitted out of fear. She feared him physically and she feared her family would not believe her because he was so good at charming everyone. She finally mustered up the courage to terminate the abuse by running away from him and leaving the house. She told her parents, who told his parents, but nothing happened except he stopped attending joint family get-togethers. Her parents discouraged her from reporting the crimes to the police and she did not do so until he was in custody after he shot and killed Trayvon Martin. When asked by police investigators why she waited until then to report the crimes, she said she finally felt safe to do so.

I listened to her account and I thought it was very credible. Don’t kid yourselves, child victims of sex abuse rarely report the abuse because they are afraid they will not be believed and afraid of reprisals. This lady has a lot of guts and courage to come forward with these allegations knowing as she must have known that the information might become public.

Question: What impact will this have on selecting a jury in the murder case?

Answer: It will definitely complicate seating a fair and impartial jury, but the State of Florida was able to do that in the Casey Anthony case and I have no doubt they will be able to do so in the Zimmerman case.

We are immersed in this case, but many people are barely following it, if at all. The court will deal with the pretrial publicity issue by moving the trial to another county or importing a jury from another county, which is what happened in the Casey Anthony case. By questioning prospective jurors individually (i.e., out of the presence of other prospective jurors), the judge and the lawyers will be able to find out how much each juror knows about the case and whether a juror has formed an opinion about GZ’s guilt or innocence.

This precaution has worked in the past and it will work again.

Question: Is the evidence admissible at trial?

Answer: Not unless the defense opens the door by introducing evidence that GZ is a person of good character. If the defense opens the door, you will be able to hear a garbage truck backing up to the courtroom door with a load of bad character evidence to be provided in damning detail by W9 and anyone else they can find between now and the trial. According to W9, btw, there is another victim, but she is reluctant to come forward. Who knows, she might change her mind. For example, think of the recently concluded Sandusky case.

The rule in question is Rule 404(b) which prohibits the admissibility of uncharged misconduct unless it is probative of the defendant’s intent, knowledge, motive or opportunity, common scheme or plan, consciousness of guilt or absence of mistake or accident.

The evidence is inadmissible since it does not fall into any of these exceptions, unless the defense opens the door by introducing evidence of good character.

Like I said, Katie bar the door, if that happens.

While we are on the subject of uncharged misconduct evidence, let us not forget Shellie Zimmerman’s perjury and GZ’s role in putting her up to it and assisting her to conceal the Peter Pan account and lie about it in court (i.e., the internet donation account).

As Judge Lester said in his recent order setting bail, it would not have been unreasonable for the Court to have concluded that, but for the GPS bracelet, the defendant would have used his second passport to flee the country with $130,000 of other people’s money after he bailed out the first time.

If that was his intent, evidence of his role would be admissible under rule 404(b) as consciousness of guilt, for the same reason that evidence of flight to avoid prosecution is admissible to show consciousness of guilt.

I have written about this possibility before and, as I stated then, the prosecution probably will need Shellie Zimmerman’s cooperation and testimony against GZ to make that case.

Will W9’s statement be the straw that breaks Shellie Zimmerman’s back and sends her knock knock knockin’ on the door to the prosecutor’s office?

Who knows, she might even throw in an admission that GZ did not kill TM in self-defense.

Stay tuned.

Question:What about W9’s statements about racism in the Zimmerman family. Are they admissible?

Answer: No. W9’s testimony about family racism is not admissible because it’s not specific to GZ. She did not mention any specific instances where he expressed racist beliefs or epithets. and even if he had done so, it still would likely be inadmissible. Otherwise, it might be admissible under rule 404(b) to show evidence of motive.

Question: Are there any other foreseeable consequences?

Answer: Yes. The most immediate and probable consequence of this revelation today, other than a dramatic world-wide increase in disgust for George Zimmerman, should be a dramatic collapse of financial support via internet contributions to his defense fund.

Should be interesting to see what his supporters come up with to defend him. Are they vile enough to mount a full-fledged attack against W9 the way Rush Limbaugh attacked Sandra Fluke?

Will Fox News reach a new low in entertainment reportage?

Question: What’s up with his lawyers?

Answer: The not-ready-for-prime-time defense team still isn’t ready. They should have filed an appeal on Friday or first thing this morning in the Court of Appeals along with a request for an emergency stay ordering the prosecution to not release the information pending the outcome of the appeal.

This inexplicable failure coming on the heels of the reckless and legally groundless motion to disqualify Judge Lester looks really bad.

Apparently, O’Mara has asked for reciprocal discovery on W9 and that is not a good move at this time because it looks so thuggish.

Why posture like that when she is unlikely to testify?

Question: Did Judge Lester really have to release W9’s statement to the media under the Sunshine Law?

Answer: I do not know, but if so, this is a perfect case to get before the State Supreme Court to carve out a privacy exception to protect victims of uncharged crimes, especially sexual crimes, from having their stories published for all the world to see when it is not likely that they will ever testify.

I am appalled by their failure to file a timely appeal.


Criminal Law: Admissibility of Uncharged Misconduct Evidence

December 18, 2011

Two what?

Author’s note: I refer to the Federal Rules of Evidence for the sake of convenience because most states have adopted them verbatim, or with only slight changes. They have even retained the same numbering system for ease of reference.

In criminal trials, prosecutors often seek to introduce evidence that a defendant has committed misconduct other than that charged in the information or indictment.

Why?

Answer: Since prosecutors are required to overcome the presumption of innocence by proof beyond a reasonable doubt, they fear they will not be able to convict a defendant without relying on uncharged misconduct evidence, especially in weak cases.

Rule 401 of the Federal Rules of Evidence (FRE 401) provides:

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

FRE 402 provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

No one disputes that, under some circumstances, such evidence is relevant, for example, to show a defendant’s state of mind where his state of mind is an issue in a case.

Let us say that a 31-year-old defendant is charged with statutory rape in a hypothetical jurisdiction where the crime prohibits a person over the age of 25 having sex with a person under the age of 16. He claims that he did not know and had no reason to know that she was underage because she told him she was 19 and she appeared to be that old. Thus, the issue is whether the defendant knew she was under the age of 16 .

Let us further say that the prosecutor can prove that the alleged victim met the defendant when she approached him in a parking lot outside a convenience store and asked him to buy her a pack of cigarettes because she was not old enough to buy them. He agreed, and after he gave her the cigarettes, they spent some time together that ended several hours later when her father discovered them in flagrante delicto while parked outside the family house. A person must be 16 in this jurisdiction to buy cigarettes legally and it is a misdemeanor to purchase cigarettes for a person under the age of 16.

Should the prosecutor be permitted to introduce evidence about the cigarette purchase?

Answer: Yes, the incident is relevant under FRE 402 because it establishes that he knew she was under the age of 16, and relevant evidence is admissible under FRE 401.

What about other instances of uncharged misconduct? Are there other rules that apply?

Answer: Yes, FRE 403 and 404.

FRE 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Would the cigarette purchase evidence be inadmissible under FRE 403?

Answer: No, because the probative value of the evidence to prove that he knew she was under the age of 16 is high and the danger of unfair prejudice is low. There is little danger that the evidence will confuse the issues, mislead the jury, or waste time.

Note that any analysis under FRE 403 requires a weighing of probative value versus prejudicial effect.

FRE 404 provides:

(a.) Character evidence generally.

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1.) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution.

(2.) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

(3.) Character of witness – Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b.) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

(emphasis supplied)

FRE 404(a) states the general rule, which prohibits the use of character evidence (e.g., the defendant is a liar) to prove that the defendant lied on a particular occasion relevant to the case. I believe this rule makes sense because no one lies all the time with the possible exception of the obamanable one, of course. Such evidence would invite the jury to basically presume the defendant lied at the time in question, rather than basing its decision on the evidence, and that would violate the presumption of innocence.

FRE 404(b) begins with a general prohibition against the use of uncharged misconduct. The second sentence sets forth the exceptions.

Uncharged misconduct is admissible to prove:

1. motive,

2. opportunity,

3. intent,

4. preparation,

5. plan

6. knowledge,

7. identity, or

8. absence of mistake or accident.

In our hypothetical, the defendant’s uncharged misconduct (i.e., purchasing cigarettes for the underage girl) would be admissible to show knowledge (i.e., that he knew she was less than 16-years-old) and absence of mistake (i.e., that he did not mistake her to be 16-years-old, or older).

As before, the judge would have to balance the probative value of the evidence against its potential prejudicial effect pursuant to FRE 403, but we all know how that will turn out.

Whether any one or more of these factors will be present in any given case depends on what the prosecution must prove to convict a defendant and whether the prosecutor knows about and can prove prior uncharged misconduct.

Note: FRE 404 applies when a prosecutor seeks to introduce uncharged misconduct evidence during its case-in-chief (i.e., when the prosecution is presenting its case). FRE 609, which governs the admissibility of a defendant’s prior conviction, applies during the defense case after the prosecution rests, if the defendant testifies (i.e., if the defendant testifies, the prosecution gets to introduce the prior conviction to impeach or undermine the defendant’s credibility. The prosecution cannot introduce the prior conviction, if the defendant does not testify). Prior felony convictions are admissible, if less than 10-years-old, subject to the judge weighing the probative value versus the potential prejudice to the defendant, unless the crime involves dishonesty or false statement. Even misdemeanors that involve dishonesty or false statement are admissible under this rule.

Some examples:

1. Prior drug use should be excluded in a drug case since it merely shows propensity to use drugs, which has low probative value and high prejudicial value and it does not fall into any of the 8 exceptions listed in FRE 404(b).

2. A prior felony drug conviction should not be admissible as impeachment, if the defendant testifies, because its potential prejudicial value outweigh its probative value, However, some jurisdictions permit it on the ground that a drug conviction involves dishonesty or false statement.

3. So-called signature crimes are admissible under FRE 404(b) to prove identity of the perpetrator.

Conclusion: The admissibility of uncharged misconduct evidence is one of the most complicated and litigious issues in criminal law. This essay is a brief overview of the subject to explain what it is about in laymen’s terms. Should you or someone you know be involved in a case in which this issue comes up, educate yourself with this article and use it to intelligently discuss the issue with your lawyer. As always, rely on your lawyer. If you do not trust your lawyer, hire another one.


%d bloggers like this: