Will the defendant testify or not testify?

July 6, 2013

Saturday, July 6, 2013

Good afternoon:

I write regarding whether the defendant should testify.

I advised my clients not to testify, unless there was some specific reason why I believed they had to testify. That reason typically would involve testifying about something that the jury would not otherwise know unless the client testifies. This is a common occurrence is self-defense cases and why most lawyers will say that a client must testify in such a case.

As Assistant State Attorney Richard Mantei said yesterday, the use of deadly force in self-defense is unlawful unless the defendant reasonably believed that he was in imminent danger of being killed or suffering serious injury when he used deadly force. The reasonableness requirement means that the defendant’s conduct must be evaluated objectively by comparing his conduct to the conduct of a reasonable person in the same situation.

The jury of 6 women, 5 of whom are mothers, will decide whether the defendant acted reasonably.

The defendant is the only person who can tell them whether he believed he was in such danger when he shot Trayvon Martin. According to various witnesses who have testified, he described a situation to them that, if true, probably would objectively constitute such a danger. For the past year, his lawyer, Mark O’Mara has been aggressively selling the defendant’s story on national television and waiving the two bloody cell phone photographs of the back of the defendant’s head and his face as proof that the defendant acted reasonably. I think the national media has uncritically accepted O’Mara’s sales job and shamelessly promoted it.

The critical question, however, is whether the 6 women, 5 of whom are mothers, believe what the defendant told others. They are not required to believe anything he said. I doubt they will believe him, given his many contradictory statements, implausible claims, and the forensic evidence, particularly the DNA evidence, which proves that Trayvon Martin did not hit him 20-30 times in the face, grab his head and repeatedly slam it into a concrete sidewalk, or attempt to smother him by placing his hands over the defendant’s nose and mouth.

I believe the prosecution has proved beyond a reasonable doubt that the defendant provoked the encounter with Trayvon Martin by following him in a vehicle and then on foot after Trayvon attempted to elude him. He hunted him down and attempted to restrain him contrary to a request by the police dispatcher not to follow him and he never identified himself or explained why he was restraining him. Under these circumstances, Trayvon Martin was entitled to use reasonable force to defend himself, escalating to deadly force when the defendant pulled out his gun. Therefore, Trayvon Martin used lawful force to defend himself and the defendant’s use of force was unlawful.

If he were my client, I would tell him that this is my assessment.

If he responded with, “What about my mother identifying me as the person who screamed?” I would say she did not do so unequivocally. Sybrina Fulton did and she was credible.

I would tell him that he gets to make the call regarding whether to testify. Given my assessment that the jury is going to convict him, I would also tell him that his only chance to avoid conviction would be to testify and persuade those 6 women, 5 of them mothers, that they should not convict him.

I would explain the following information.

The burden of proof in all criminal cases in this country is on the prosecution to prove beyond a reasonable doubt that the defendant committed the crime charged. The defendant is presumed innocent throughout the trial and the jury must find him “not guilty” unless the prosecution overcomes the presumption of innocence by proof beyond a reasonable doubt.

The term “beyond a reasonable doubt” is generally defined as such a doubt as would exist in the mind of a reasonable person after fully and fairly considering all of the evidence or lack of evidence. The prosecution is not required to prove guilt beyond all doubt, just beyond a reasonable doubt. Generally, a reasonable doubt is a doubt for which a reason exists, as opposed to a speculative doubt or a mere suspicion. The Florida instruction states that a person is convinced beyond a reasonable doubt if they have an abiding belief in the truth of the charge. An abiding belief is a long lasting belief. The idea is that a juror is convinced beyond a reasonable doubt if they are sure that they will not change their mind sometime in the future due to some doubt they have about the strength of the evidence.

The definition of reasonable doubt is circular, which frustrates jurors who expect and want reasonable doubt quantified. For example, preponderance of the evidence, which is the burden of proof in a civil case, is defined as proving that a proposition is more likely so than not so or supported by more than 50% of the evidence. There is no equivalent percentage of certainty used to define reasonable doubt. I believe most trial lawyers and judges would agree that it’s possible that different juries hearing the same case could reach different conclusions. This is why attorney voir dire during jury selection and the use of cause and peremptory challenges to select a jury are so critically important.

Our legal system guards and protects the sanctity of the jury room and juror deliberations. A jury is never required to explain or justify its verdict. As a result, a jury actually gets to decide what constitutes reasonable doubt, even though they are never told that they have this power. The jury is a reflection of the community and it acts as the conscience of the community when it decides whether the prosecution has proved the defendant’s guilt beyond a reasonable doubt.

I would tell him that if he can express his humanity and touch their hearts, he has a chance at manslaughter.

I would also tell him that he must tell the truth without any bullshit like he uttered on the Hannity Show.

He must admit when he lied, to whom he lied, and why he lied.

He must convince them that he acted out of fright, not anger.

I think he’s going to testify for all the wrong reasons because he has always been able to lie his way out of trouble.

Ain’t going to work this time.

I have one final reason for believing he will testify. His lawyers did not voir dire the prospective jurors on his right to remain silent and not testify. I always did that in my cases to make sure the jurors understood that they could not use his silence against him by presuming he had something to hide.


Judge Debra Nelson denies defense motion for judgment of acquittal

July 5, 2013

Friday, July 5, 2013

Good evening:

Judge Debra Nelson summarily denied a defense motion for a judgment of acquittal this afternoon after the State rested its case.

The first witness called by the defense was the defendant’s mother, Gladys Zimmerman, who identified him as the person who uttered the terrified death shriek that is audible in the background of a 911 call. However, she admitted on cross examination that she had never heard him scream for help or cry out like that.

Her testimony contrasted sharply with testimony this morning by Sybrina Fulton, Trayvon Martin’s mother, who identified him quietly and sorrowfully without equivocation.

The State rested its case after presenting the testimony of Dr. Bao, the Assistant Medical Examiner who performed the autopsy on Travon Martin. He described the gunshot wound as direct from front to back with the hollow point bullet passing through the front and rear wall of the right the ventricle before coming apart and scattering in different directions finally coming to rest in the pericardial sac.

He testified that Trayvon would have been conscious and in pain from 1 to 10 minutes but unable to move or speak during that time. His testimony contradicts the defendant’s claim that Trayvon sat up and said, “You got it,” or “You got me.”

It also makes it extremely unlikely that he did not know that Trayvon was dead before the police arrived, contradicting his claim on the Sean Hannity Show that he did not know that he’d hit Trayvon when he fired the shot and did not find out he was dead until someone told him at the police station later that evening.

The defendant’s claim on the Sean Hannity Show that he has no regrets, would not do anything differently, and everything happened according to “God’s plan,” is chilling in light of today’s testimony.

Judge Nelson recessed the trial for the weekend until Monday morning at 9 am EDT.

Between now and then, the defendant will have to decide whether to testify or remain silent.

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Gloom in Mudville: The defense is upside down by $10,000

April 15, 2013

Monday, April 15, 2013

Greetings to everyone.

The defense is falling apart.

In the latest issue of Zimsanity News, which is my handy new way of referring to propaganda information about the legal case released by Mark O’Mara or information about the defendant’s clueless family released by its official spokesperson, Robert Zimmerman, Jr., we find out that Mark O’Mara wants the settlement agreement opened up for public review, including the settlement amount.

Ben Crump is OK with publicizing the agreement, but he wants the settlement amount to remain confidential.

Meanwhile, O’Mara announced on Friday that the defense fund is upside down by about $10,000. That’s bad news for the defense team with only 56 days left until trial.

Could this mean that the defense might be on the verge of tossing a white handkerchief into the ring, if the Court of Appeals denies the writ?

Possibly, because insufficient funds to try the case the way it should be tried is often cited by private counsel as the reason for a last minute guilty plea.

Do I have any evidence that such discussions have taken place?

No, I do not.

I discussed the lack-of-money problem a couple of months ago and suggested that the defense should consider filing a motion asking Judge Nelson to declare the defendant indigent. That would assure that all reasonably necessary defense expenses for deposition transcripts, investigators and expert witnesses would be paid by the court. No fuss, no muss regarding unpaid bills. That would certainly lighten the stress load.

Not so fast, you say?

Well, you’re right. O’Mara’s plea for more money from donors brought in approximately $60,000, but I gather that donations have slowed to a trickle.

Will another plea for money prime the pump, so to speak, and avert the looming financial crisis?

Maybe.

Maybe not.

If O’Mara cannot pull another financial rabbit out of his hat, he will have to ask Judge Nelson to declare the defendant indigent. However, given how quickly the defense blew through the $60,000 I cannot help but wonder if the defense has mismanaged the donations by spending far too much money for the defendant’s living and security expenses. I have not kept a tally but IIRC, they’ve blown through close to a half million by now and more than half of that money was spent on living and security expenses.

I think Judge Nelson would be required, as a matter of law to declare the defendant indigent, if he can satisfy her that he truly is indigent, even if he is responsible for having attained pauper status by spending too much money on non-essential items.

Bottom Line: O’Mara needs to take action to solve this problem ASAP because the longer he waits for the money to start flowing again, the more incompetent and irresponsible he will appear to be. That is exactly the wrong message to be broadcasting this close to trial, especially after he basically waived the “sure thing” immunity hearing and we now know that the HOA was not buying the narrative he was pushing on the public.

After all, why would potential donors remain willing to contribute money, if the defense failed to manage previous donations responsibly and O’Mara blew his credibility with donors when he waived the immunity hearing that was supposed to be such a sure-thing?

Those two circumstances might very well turn out to be death blows to the defense.

And then there is the message from Gladys blaming the public for the decision to charge the defendant with second degree murder.

I am going to pass on criticizing a mother for defending her son.

She is entitled to her opinion.

I base my opinion on the evidence.

The case is starting to smell like decomp to me.

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Trayvon Martin’s Murder Forces Us To Confront Racism

December 27, 2012

Thursday, December 27, 2012

I realized the defendant was lying when I first read his narrative about the shooting.

Why?

Because I believe it’s extremely unlikely that an unarmed person would flee from a menacing stranger following him and, after successfully getting away, voluntarily approach, engage and attempt to beat that stranger to death with his bare hands.

That story is ridiculous. It made no sense to me when I first read it and it makes no sense to me now.

With two exceptions, I never have understood why anyone would believe that ridiculous story.

As a former criminal defense attorney and law professor, I certainly understand, support and believe in the presumption of innocence. I trained myself to think that way and always searched for the weaknesses in the prosecution’s case against my clients. I had no problem exploiting those vulnerabilities for the benefit of my clients. I suspect that most of the lawyers and law professors who have publicly supported the defendant did so from the perspective of presuming that he spoke the truth.

Since I no longer practice or teach law, I believe I can evaluate this case from a more objective perspective.

I cannot and will not presume that an obvious bullshit story is the truth.

I have reviewed all of the evidence released to the public to date and I have not found any evidence that supports the defendant’s story. Instead, his multiple inconsistent and contradictory statements conflict with the physical and forensic evidence. In fact, he has admitted that he shot and killed Trayvon Martin after he had him under control with a wrist lock. He said he pulled out his gun, extended his right arm, aimed to avoid shooting his left hand, and fired the single shot that killed Trayvon Martin. The terrified, prolonged and desperate shriek protesting the depraved execution that was about to occur finally and forever was silenced by the gunshot.

No one is going to believe that the defendant uttered that inhuman shriek with a loaded gun in his hand.

I feel obliged to remind my former colleagues that the presumption of innocence does not require them to blindly accept a liar’s story and actively defend that liar by supporting his effort to demonize an innocent victim and his parents. I am offended, horrified and disgusted by the unrelenting attacks on Trayvon, his family and their supporters. I have no respect for anyone who participates in or supports those attacks, including members of the mainstream media who publicize them, and by so doing, legitimize them.

Enough is enough.

We do not need or want to hear any more lying racist Zimmermans polluting the news.

The Trayvon Martin murder case is much more than a set of hypothetical facts to be discussed in a classroom. It is a real case involving real people and I think our responses to this tragedy reveal much about ourselves as individuals and as a society.

For example, in order to believe the defendant’s story, one would have to believe that Trayvon Martin acted like a stereotypical Black Gangsta thug in a Hollywood action movie. Would any Caucasian person believe the defendant’s story, if the person he killed were Caucasian?

Is it not easier for Caucasians to believe his story because the victim is Black?

I believe we would not have heard about this case, if Trayvon Martin had been a Caucasian kid. The defendant would have been arrested and jailed that first night. He would have been charged with second degree murder and prosecuted without any of the publicity and controversy that we have seen.

The most important lesson of this case is that racism is alive and well in our nation. The defendant’s characterization of Trayvon Martin presents each one of us with a litmus test. Those who accept and believe what he said are failing the litmus test and seriously need to ask themselves why they were so willing to believe such an obvious lie.

Those who continue to believe the defendant in the face of overwhelming evidence that he is a liar may be beyond help.

We live in a racist society and nothing will change unless we admit that we do and we commit to ending racism. As always, the self is the place to start changing society.

Trayvon Martin will not have died in vain if his death becomes the rallying point for a systematic, determined and prolonged effort to once and for all eliminate racism in our society.

Unless we succeed, we will remain a racist and failed society.


The Gladys and Robert Zimmerman Jr Show on Univision

December 12, 2012

Wednesday, December 12, 2012 (12/12/12)

I received yesterday the following English transcript of an interview of Robert Zimmerman, Jr., and his mother, Gladys Zimmerman. The interview was conducted by Jorge Ramos of Univision and forwarded to me by Elliott, an old friend at Firedoglake. The interview was conducted in Spanish, Gladys Zimmerman’s native language.

On Tue, Dec 11, 2012 at 11:32 AM, Univision Network Public Relations wrote:

Below is the English-language transcript of Univision’s Spanish-language interview with Robert Zimmerman Jr. and Gladys Zimmerman. The Spanish-language transcript can be found following this transcript. If you have any questions, please contact Jose Zamora: josezamora@univision.net.

UNIVISION NEWS TRANSCRIPT

Program: Al Punto with Jorge Ramos
Content: Interview with Robert Zimmerman Jr. and Gladys Zimmerman
Air date: December 9, 2012

Key

JR: Jorge Ramos
RZ: Robert Zimmerman Jr.
GZ: Gladys Zimmerman

JR: In his first conversation with Spanish-language TV, joining us here in the studio is Robert Zimmerman, George’s brother. Robert, thanks for being with us.

RZ: Hello, Jorge.

JR: Thank you very much for being here. Thank you. And via satellite, his mother, Gladys Zimmerman, who for safety reasons does not want her face to be shown. Mrs. Zimmerman, thanks for being with us.

GZ: You’re welcome. Hello, Jorge.

JR: Let me start with you. Of course, you’re Peruvian and speak Spanish very well, and this will make this interview with you much easier. The first question is, where is George at this time?

GZ: George is in Seminole County, under court order.

JR: What were the conditions the court imposed on him? Can he leave his home?

GZ: Oh, yes, he can leave home from 6:00 in the morning until 6:00 in the evening.

JR: And does he do it or is he afraid he’ll be recognized?

GZ: There are days he has to do it, mostly for his mental health.

JR: Of course, I assume that at this time, beyond coming and going for basic necessities, I guess he’s not working or doing anything to make a living. Right?

GZ: Unfortunately, Jorge, no. And I doubt that in the future or near future he’ll be able to work and make a living.

JR: Let me start by talking about this case, and I understand that due to legal reasons, there are many things you cannot talk about. You tell me what you can and you cannot talk about. But…

GZ: Sure.

JR: … when you first found out that your son had been involved in this incident in which he shot Trayvon Martin, how did you find out?

GZ: I found out from him.

JR: What did he tell you?

GZ: He told me he’d had an incident and that, unfortunately, he’d had to use a weapon to defend himself.

JR: Regarding the weapon, how is it that George has access to weapons? At home, was it customary to be armed? Was that something that the Zimmermans did?

GZ: Look, let me tell you, we have lived in Virginia most of our lives. We’ve lived there for 31 years, and George lived there for 17 years of his life. He was born there, grew up there, he graduated from high school there, and then he came to Florida. It’s in Florida that the law is different in the sense that people can get weapons, get a license and can carry them. The same thing happens in Virginia, but here I’ve noticed that people can get a weapon, what they call a concealed weapon, and carry the weapon, and it’s no big deal.

JR: And did you know that George had a weapon?

GZ. The reality is that I didn’t know that George had a weapon.

JR: And did you know if George was involved in neighborhood watch activities in the area where he lived?

GZ: Yes, I knew he was helping out, he was very worried about the home burglaries that had happened. I’m familiar with those houses, and I couldn’t believe there were so many burglaries, especially in a gated area, you know?

JR: Very well, and now, I want to get to the point. As you know, your son George is accused of Trayvon Martin’s death, and many people in the United States suspect that he did it for racial reasons. However, you and his lawyers insist that it wasn’t because of race, but rather to defend himself from a personal attack. What is your interpretation? What happened?

GZ: George is not a racist. My family is not racist. That will come out in the evidence. What will also come out in the evidence and what has been seen lately is the photo of my son after he was beaten up. My son defended himself for dear life. The young man who attacked him, for reasons we do not know, left a mark behind and thank God there is a photo that can show that mark. If it weren’t for that mark…

JR: Are you referring to the color photo that shows your son with wounds on his face?

GZ: Exactly. That photo that was turned over to the defense in black and white, and now it has been turned over, thank God, in color, shows how my son was attacked. According to young Martin’s autopsy, he had no marks on him, except the bullet that went into his chest, which unfortunately, killed him.

JR: Well, you say that George wasn’t racist. There are many people who assert that if Trayvon Martin hadn’t been wearing a hoodie and hadn’t been African-American, he’d be alive today. That is, they suggest that all this was motivated simply by the fact that Trayvon Martin was African-American.

GZ: No. This happened because Trayvon attacked my son. If Trayvon Martin hadn’t attacked my son in the savage way he did… Look, Mr. Ramos, if somebody punches you in the nose, I can’t imagine the pain it can cause. But to be punched in the nose, to fall down to the ground, to have someone jump on you and hit you fiercely and bust your head open every time you try to get up, and bang your head against the pavement, and for a neighbor to open the door and say, “Stop, because I’m going to call the cops,” and for that neighbor to provide the description of the person who was hitting him, the one who was lying on the ground, using what they call MMA style, mixed martial arts. I had never seen that sport, but I saw it on YouTube and I was shocked at people getting hit so aggressively.

JR: Now, wasn’t your son’s reaction in using a weapon excessive? Couldn’t he have defended himself in some other way?

GZ: Well, I can’t tell you because I’m not in his shoes. But the only thing I can tell you is this: show the photo of my son like that, in color, and play the tape, that tape in which he asks for help, in what many witnesses say is my son’s voice. Even Trayvon Martin’s father, Mr. Tracy Martin, says that it is my son’s voice. Show those two things together.

JR: I emphasize, you have told us in this show that George is not a racist. I understand, of course, that George and your son Robert went to Peru on several occasions, and you well know that in Latin America there is a lot of discrimination, not only against indigenous groups, but also among people who have darker skin. What did you teach your children regarding the discrimination we have in Latin America? How did you raise them?

GZ: Look, Mr. Ramos, in Peru we have a saying that basically says, “If you’re not one thing, you’re another,” which means that if you don’t have Indian blood in you, you probably have some African blood. In my family, we’re proud of our Afro-Peruvian heritage. My kids know their aunts and uncles; they know our roots, and my roots aren’t with non-Hispanic whites. My roots are Afro-Peruvian. So they have been brought up, not just here at home as a family, but in school, not to notice peoples’ skin color. I call them “my kids” because they are part of my family, because skin color doesn’t mean anything to me either.

JR: Mrs. Zimmerman, as you know, President Barack Obama weighed in on the issue when he said that if he had had a son, he would have looked like Trayvon Martin. How do you respond to that?

GZ: Well, at the beginning it hurt a lot, but now that I know how things developed, because, honestly, Jorge, at the beginning I barely even watched TV. My husband and my doctors forbade me from watching TV. It has all been really traumatic, but now that I’ve seen how Trayvon Martin’s family’ lawyers have presented this case; I don’t blame the President, because they fooled him, too. All of this has to be set straight: all the lies that have been told by Mr. Crump, by Ms. Nathalie Jackson through Ryan Julison of Julison Communications. It all needs to come out, but they told a lie to the nation, to the whole world, and even the President himself.

JR: Mrs. Zimmerman…

GZ: That’s how I feel about this now.

JR: Mrs. Zimmerman, I’ll come back to you in a moment. Now I’m going to go to your son Robert, who is with us in the studio. Robert, thanks again for joining us on Al Punto. Your brother George Zimmerman’s legal team has filed a lawsuit for defamation against NBC. Why?

RZ: Well, George has explained in his own words how they made up a racial narrative, because the facts of this story just weren’t sensational enough for people who wanted to report more. So words like white, black, and gated community were used from the beginning to speculate about what had happened, which was very, very different from what really happened on that day.

JR: The debate is centered on whether your brother acted out of racism or self-defense. What do you know about that? What has your brother told you?

RZ: Well, as a brother, I know we need to ask why Trayvon Martin punched him. You know? Lots of people are focusing on what George did. He did the same thing he did 40 times in one year: he called the police. What George did is that same thing that was done 400 times over 13 months where he lived, in a neighborhood of less than 200 homes around there. Four hundred calls to the police: why? Because there were a lot of robberies, there was a woman with a baby who was just months old, in her bedroom while her house was being robbed, and people were afraid. So I think that what George…

JR: But is this the first time that George has used a handgun to defend himself this way?

RZ: Oh, yes. In the state of Florida, handguns are licensed, but you have to keep them concealed. Back where we were in Virginia, as my mother started to explain, the law is totally opposite. Even without a license, you can carry a handgun just like I have done when I’ve gone out to shoot at a public range as long as it’s in sight.

JR: Do you know if George had a handgun?

RZ: Yes, yes, I had always known that both George and his wife had a permit for that gun. There was an attack, or, an alleged incident in which they could have been attacked by a dog, but that has nothing to do with our case. But at that time a police officer suggested to him, “Look, if you’re so afraid of that dog and if these people don’t keep it under control, it’s better for you to be armed than to wind up in the hospital.”

JR: Okay. So, what’s the next step? What are you folks emphasizing in the defense the fact that you are a Hispanic family?

RZ: No, Jorge, because I think that would be going, well, going backward on the progress we’ve made about race. We are an American family, and what happened that night was a tragedy. That’s what it has always been for our family, but for us to say, “We’re Latinos, and so Latinos need to take our side rather than someone else’s because that person is of a different color,” that wouldn’t be right, either. Now, what has surprised the public is that we are not non-Hispanic whites. That photo of George where he has very light skin is because it was a photocopy, that photo doesn’t look like him. And if that photo had been published in color, if people had known something more about George than just the word non-Hispanic white like they put on all the posters when they were offering $10,000 for him dead or alive, for turning him in…. Well, if they had known something about what really happened that night, maybe we wouldn’t have gotten to this point, but looking ahead, we need to make it clear that not only are we not racists, but the United States, and the whole world are watching us: as my mother said, “They even fooled the President.” Racism in this country is a game that pays really well. Lots of people are looking to make a buck, and there’s a lot of money to be made by alleging racism. You don’t even have to prove it.

JR: George, thanks for being here with us. I appreciate it a lot.

RZ: Thanks.

JR: Mrs. Gladys, thanks for joining us. Before we go, I just wanted to ask why you decided to talk to us, and why we are concealing your face. Do you fear for your life?

GZ: Yes, I fear for my life. I have to protect it, and I have to protect my family. I have an 88-year-old mother to take care of. If I have to come out in defense of my son, the best way I can do it is by keeping my identity concealed. We’ve come on Univision because we trust that it’s a news organization that will get to the truth, and I would love for it to be a Hispanic news organization that goes all the way in search of the truth.

JR: Gladys Zimmerman, thanks for speaking with us.

GZ: You’re welcome.

JR: Robert Zimmerman, thanks for being here.

RZ: Thanks, Jorge.

JR. Thanks to both of you.

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