The prosecution concealed police corruption in Zimmerman trial

July 21, 2013

Saturday, July 20, 2013

Good evening my friends:

The jury delivered its verdict in the George Zimmerman trial a week ago tonight. I was shocked and dismayed by the verdict. Like most of you I initially focused my wrath on stealth juror B-37 because she basically admitted on national television approximately 12 hours after the verdict was announced to having decided that “George” (referring to him as though he were a personal friend) was not guilty before she heard any evidence in the case. Indeed, her summary of the evidence matched the false narrative that Mark O’Mara had been preaching and the national media had been duly reporting for a year.

She bought O’Mara’s Trayvon-is-a-thug story despite no evidence to support it. Her race-based criticism of Rachel Jenteal’s manner of speaking and her consequent decision to ignore her testimony was a breathtaking admission of racist thinking that she quite obviously regarded as acceptable normative behavior that no one would question.

When I thought she could not possibly do more damage to herself, she added insult to injury with her giddy announcement that she had reached an agreement with a literary agent to sell her story to a publishing house before the story was even written. Never mind that she or her attorney husband must have contacted the literary agent in violation of the sequestration order, unless they contacted her in the middle of the night after the verdict was announced.

I seriously doubt that literary agents accept cold calls on late Saturday nights and early Sunday mornings from unpublished authors pitching ideas for unwritten books. Thankfully, the agent had the good sense to nix the deal once she realized she was dealing with an out of control racist wacko.

I was so disgusted and angered by B-37’s false statements under oath during voir dire, her willful violations of the sequestration order and her oath to follow the jury instructions that I urged the prosecution to prosecute her for perjury. Well, I have not seen any sign that Angela Corey intends to make an example out of her to warn future jurors not to engage in those behaviors. Seems to me that such a prosecution probably is necessary in Florida to convince jurors that an oath truly is a promise to tell the truth under penalty of perjury. In addition, B-37 truly is an unrepentant racist and egregious human being who deserves to spend time in prison for who she is as well as what she did.

While I have no doubt that B-37 contributed significantly to the miscarriage of justice, she was not alone. I also hold Angela Corey and Bernie de la Rionda responsible two disastrous tactical decisions; namely, the decision to remove race from the case and the decision to refrain from aggressively attacking Investigator Chris Serino and Officer Doris Singleton for their testimony supporting Zimmerman and vouching for his credibility. Serino, in particular, deserved to be raked over the coals for tampering with witnesses at the crime scene in an attempt to convince them that the defendant uttered the terrified death shriek.

Witness tampering in a murder case is a felony punishable by up to life in prison.

I first read about Trayvon Martin’s murder while the Sanford Police Department was still investigating the case and it seemed that Zimmerman was not going to be charged.

Their reluctance to charge appeared to me to have been imposed from the top down by State Attorney Norm Wolfinger and Chief Bill Lee due to as yet unknown reasons political reasons rather than the merits of the case.

That is corruption and that is not how our legal system is supposed to work.

As soon as I reviewed the defendant’s statements, including what he said during the NEN call, I realized that this case was all about race and could not be understood without mentioning race. If Trayvon Martin had been white, for example, the defendant would not have called the police.

I wrote an article in which I stated that anyone who believed George Zimmerman’s story was necessarily a racist. That is, one had to assume that Trayvon was a violent and crazy thug who all of a sudden for no apparent reason decided to attack and attempt to kill with his bare hands a menacing stranger who had followed him in a vehicle and then on foot after Trayvon had successfully eluded him by running away and hiding in a dark area behind a building containing townhomes. No person in their right mind would do that.

The defendant described Trayvon as a stereotypical black gangsta popularized in comics and blaxploitation films. In order to believe Zimmerman, people had to believe that the stereotypical black gangsta in films actually exists in real life.

I have represented black gang-bangers from Los Angeles who were members of the notorious Crips and Bloods. They were real flesh and blood people with more than a passing interest in survival. Yes, they had participated in gang violence and killed people but they planned what they did and they acted together. They did not utter dated movie lines or issue warnings to their intended victims before shooting them. They did not wander off unarmed and alone somewhere and suddenly decide to attack and kill a stranger with their bare hands. None of them would have believed Zimmerman’s ridiculous story. Only a white racist fixated on young black males who gets a thrill out of watching movies about mean and vicious black gangstas believing that they represent real people would even be capable of making up such a ridiculous story.

I was and continue to be astonished that anyone believed his story.

I believe that the extent to which it is believed offers a pretty accurate measuring stick indicating the prevalence of racism against blacks in our current society.

George Zimmerman did not profile Trayvon Martin as a thug casing the neighborhood for a house to burglarize in the RTL around 7 pm on a rainy Sunday night in late February because Trayvon was wearing a hoodie and walking around in the rain. He profiled him because he was a young black male and he invented a self-defense claim to justify killing him by describing Trayvon Martin as character in a movie.

Race was the proverbial elephant in the living room and the prosecution should never have agreed not to mention it. Zimmerman selected Trayvon because he was black and he hunted him down and attempted to detain him because he assumed certain things about him because he was black. He was the aggressor because he was determined to prevent him from escaping out the back entrance before the police arrived just like all of the other fucking coons and assholes who got away.

A review of all of the defendants NEN calls establishes that he obsessed about blacks. Black residents of the RTL had negative experiences with him where he accused them of wrongdoing. A visible pattern emerges of Zimmerman repeatedly assuming that blacks engaging in normal activities actually were up to no good and he called the police NEN to report them.

All of this evidence was relevant to why he selected Trayvon and why he killed him

As John Guy said, “George Zimmerman did not shoot Trayvon Martin because he had to. He shot him because he wanted to.”And he did it because Trayvon was black.

In other words, he committed a federal hate crime and I hope the Justice Department prosecutes him.

I do not know why the prosecution decided not to stress the importance of race. I imagine Angela Corey made the decision with Bernie de la Rionda’s consent. I do not believe John Guy or Richard Mantei participated in that decision. I think Corey and de la Rionda owe us an explanation.

They also inexplicably allowed Chris Serino and Doris Singleton to support George Zimmerman’s claim of self-defense. I can understand not wanting to attack a law enforcement agency in order to avoid incurring the probable wrath of other law enforcement agencies. However, once Serino and Singleton turned against the prosecution, Bernie de la Rionda should have torn Serino to shreds by bringing out that he tampered with witnesses to get them to identify George Zimmerman as the person who uttered the terrified death shriek and he set up Tracy Martin at his most vulnerable moment to deny in front of other officers, including Singleton, that he could positively identify Trayvon as the person screaming.

Serino was obviously following orders issued before he arrived at the crime scene. The fix was in and the orders were issued from the top down. He ran that investigation to produce the appearance of an investigation and he only varied from that course of action at the last minute when he realized that the department was not going to get away with not charging Zimmerman. I think he made that decision on his own hoping to save his job and hoping people would not look closely at what he did.

I think he was a trusted player in the corruption game or the Chief would not have put him in charge of the investigation.

Bernie de la Rionda also should have confronted Singleton for wearing awards on her uniform that she had not earned.

The verdict in this case might well have been different if Angela Corey and Bernie de la Rionda had not made these decisions.

The bottom line is Chris Serino and Doris Singleton are corrupt cops in a corrupt police department. They still have their jobs and that suggests that the effort to clean-up the department is only for the sake of appearances.

The prosecution’s decision to allow them to lie and gut their case to justify and conceal how they mishandled the investigation bespeaks a form of intolerable corruption in which Angela Corey and Bernie de la Rionda aided and abetted corrupt police work.

And the end result is that a racist lying psychopath is now free to kill again.

That is why I cannot and will not accept this verdict as legitimate, ever.

This is why I join with LLMPapa in urging Attorney General Eric Holder to prosecute George Zimmerman for a hate crime.

I regret to say that I do not believe Zimmerman will be charged with a hate crime. I fear the decision will be made for political reasons rather than on the merits of the case itself.

Assuming I am right that will add even more corruption to a corrupt and shameful case.

At the very least, by speaking truth to power, we draw a line in the sand and declare for all who have eyes to see that we are not fooled by the appearance of justice. We saw through to the corrupt core of this case and in this way we honor Trayvon Martin and his memory.


Zimmerman’s statements after the shooting are not admissible

June 21, 2013

Friday, June 21, 2013

Good evening:

Don West filed a written motion this afternoon identifying the defendant’s statements that he claims are admissible pursuant to the res gestae exception to the hearsay rule.

The statements are hearsay and not admissible pursuant to the res gestae or any other exception to the hearsay rule.

Mr. West describes the statements as follows:

Witness 13 and his wife heard a commotion in the back of their townhome. They heard yelling and then heard a shot. Witness 13 grabbed a flashlight and went outside to see what had happened. Within seconds of the shooting, W13 approached Mr. Zimmerman who was staggering, bleeding and breathing hard. The witness observed blood on Mr. Zimmerman’s face and the back of his head consistent with someone having been injured in a fight. Mr. Zimmerman asked W13 if he was bleeding? Witness 13 said “Yes” and W13 asked Mr. Zimmerman what had happened? Mr. Zimmerman told W13 that the other person was “beating me up” and he shot him.

Within a minute or so, Sanford Police Officer Tim Smith arrived on foot at the location where Mr. Zimmerman and W13 were standing. Officer Smith spoke with Mr. Zimmerman at the scene upo his arrival. Mr. Zimmerman acknowledged being the person who fired the shot and that he had a firearm on him. Mr. Zimmerman spontaneously stated that he had yelled for help and that no one helped him.

The defense bases its argument on Alexander v. State, 627 So.2d 35, 43-44 (1st DCA 1993), where the Court stated,

We conclude that the trial court erred in excluding the testimony of witnesses to the shooting that described appellant Alexander’s exclamations and actions immediately after firing the shot that killed the victim. This testimony was admissible under the res gestae rule now codified in sections 90.803(1), (2), and (3), Florida Statutes (1991), which define the conditions for admissibility of (1) spontaneous statements, (2) excited utterances, and (3) then existing mental and emotional conditions of the declarant. The statements about which these witnesses could testify were made almost simultaneously with the act of shooting, a period of time too short to support a finding of fabrication that would destroy the apparent trustworthiness of this evidence. The mere fact that statements are self-serving is not, in and of itself, a sufficient evidentiary basis for their exclusion from evidence. No legal principle excludes statements or conduct of a party solely on the ground that such statements or conduct is self-serving. State v. Johnson, 671 P.2d 215 (Utah 1983); State v. Wallace, 97 Ariz. 296, 399 P.2d 909 (1965); Commonwealth v. Fatalo, 345 Mass. 85, 185 N.E.2d 754 (1962). See also United States v. Dellinger, 472 F.2d 340, 381 (7th Cir.1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). While exculpatory statements of the accused generally are excluded from criminal cases because of their hearsay character, 29 Am.Jur.2d Evidence § 621 (1967), the courts of this state have long recognized an exception to this general rule where the statements form a part of the res gestae of the alleged offense. Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909); Lowery v. State, 402 So.2d 1287 (Fla. 5th DCA 1981); Watkins v. State, 342 So.2d 1057 (Fla. 1st DCA), cert. denied, 353 So.2d 680 (Fla. 1977).[2] Furthermore, Florida has followed a liberal rule concerning the admittance of res gestae statements. See Appell v. State, 250 So.2d 318 (Fla. 4th DCA), cert. denied, 257 So.2d 257 (Fla. 1971). Accordingly, we do not see any basis on this record for concluding that this testimony was lacking in apparent trustworthiness and probative value. Thus, we are impelled to conclude that the exclusion of the proffered testimony of res gestae statements in this case was an abuse of discretion and, under the circumstances of this case, cannot be treated as harmless error.

(Emphasis supplied)

Accord: Stiles v. State, 672 So.2d 850 (4th DCA 1996).

Therefore, the critical question for Judge Nelson to decide is whether the statements “form a part of the res gestae of the alleged offense” such that the Court can find that there is no basis to conclude that “the testimony [is] lacking in apparent trustworthiness and probative value.”

Contrary to the defense assertion that “within seconds of the shooting,” the witness saw the defendant “staggering, bleeding and breathing hard,” the evidence will show that the witness described the defendant as “calm and collected” and within a few minutes all of his vital signs were normal when an EMT checked him. Indeed, he was cool, calm and collected.

With the exception of a few minor injuries that did not require stitches, a trip to the ER or even a bandaid, the defendant did not even appear to have been in a fight. Moreover, the only witness who described seeing a fight subsequently retracted that statement.

The evidence also will establish that the terrified death shriek ended when the defendant fired the fatal shot and both of the state’s expert witnesses have excluded the defendant as the person who uttered that haunting scream.

The evidence will show that, at the time he uttered the statements, he knew that the police were on their way and due to arrive any second.

Finally, the evidence will show that, instead of using his cell phone to call 911 for an emergency vehicle and attempting CPR until medical assistance arrived, he mounted Trayvon, placed his hands around his throat and subsequently stood up and had a casual conversation with a neighbor about the type of gun and ammunition he used to shoot Trayvon.

Under these circumstances, unlike the two cases cited by Mr. West, there is no basis for Judge Nelson to conclude that the statements “form a part of the res gestae of the alleged offense” such that the Court can find that there is no basis to conclude that “the testimony [is] lacking in apparent trustworthiness and probative value.” In fact, quite the opposite is true.

Here is Wiki with a little more information on the res gestae exception, in case it remains unclear:

Under the Federal Rules of Evidence, res gestae is an exception to the rule against hearsay evidence based on the belief that, because certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they leave little room for misunderstanding/misinterpretation upon hearing by someone else (i.e., by the witness, who will later repeat the statement to the court) and thus the courts believe that such statements carry a high degree of credibility. Statements that can be admitted into evidence as res gestae fall into three headings:

Words or phrases that either form part of, or explain, a physical act,

Exclamations that are so spontaneous as to belie concoction, and

Statements that are evidence of someone’s state of mind.

The defendant’s statements establish that he was in a full cover-up mode knowing that the police were en route and due to arrive any second.

Therefore, the cases cited by Mr. West do not apply and the defendant’s statements are inadmissible hearsay.

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Defense mendacity in Zimmerman case is disgusting

May 24, 2013

Friday, May 24, 2013

Good morning:

George Zimmerman’s attorneys, Mark O’Mara and Don West, have unintentionally confirmed this week that they have no defense to present on his behalf by knowingly and intentionally publishing false, irrelevant and inadmissible information about Trayvon Martin to incite white racists to denounce him as a pot smoking black thug who deserved to die.

I used the word “confirmed” because three weeks ago the defendant appeared in open court and waived his right to an immunity hearing. The mixture of false and misleading information released yesterday is not a defense to second degree murder. It’s deliberate character assassination by false statement and innuendo of an unarmed teenager who was stalked, restrained and shot through the heart while screaming for help.

Here’s LLMPapa:

Last I heard, skipping school, pot smoking and participating in refereed fights between equal combatants is not a death penalty offense.

In other news, the defense attorneys filed a flurry of forgettable motions and responses to prosecution motions which, like snowflakes in April, are destined to melt when they hit the ground.

I begin with Donald West’s frivolous, dishonest and intentionally misleading reefer-madness motion that he filed earlier this week arguing that a trace amount of marijuana in Trayvon Martin’s autopsy blood should be admissible to prove that he was the aggressor even though he was unarmed and the defendant stalked, restrained and shot him in the heart.

The defense motion to continue:

1. cites no authority,

2. claims he needs to investigate Dr. Reich (the State’s audio expert who identified Trayvon as the person screaming for help), which takes about an hour if you google him,

3. claims other unnamed experts told him Dr. Reich’s opinion is based on science that has fallen into “disrepute,”

4. fails to support this assertion with an affidavit from one or more of these experts, and

5. claims he needs time to find an expert to hire even though he is supposedly in touch with all of these experts.

This motion is ridiculous and will be denied because it fails to document a reason for a continuance.

O’Mara’s motion for sanctions against Bernie de la Rionda for not disclosing the evidence that the defense obtained from Trayvon’s phone and published in its 3rd evidence dump, is frivolous because the so-called exculpatory evidence that he claims BDLR withheld in violation of the Brady rule is not exculpatory.

Therefore, the Brady rule does not apply and this motion should be denied.

West’s reply to the State’s motion to exclude opinion evidence about the defendant’s guilt or innocence generally admits that witness opinions about the guilt or innocence of a defendant are inadmissible but warns that if the State attempts to attribute the delay in arresting and charging the defendant (which isn’t relevant either), then the State will have opened the door to allowing the defense to call SPD cops to justify what they did.

I don’t believe this issue will come up as it is irrelevant to whether the defendant murdered Trayvon.

Sideline mini-trials about marginally relevant or irrelevant issues are exactly what evidence rule 403 is designed to prevent.

West’s 2-page reply to the State’s motion to exclude the defendant’s self-serving hearsay statements, which does not cite a case, generally agrees that many of the defendant’s statements are hearsay, if offered by the defense, but disagrees with the State’s argument that none of the defendant’s statements are admissible under the res gestae exception or some other exception to the hearsay rule. West asks Judge Nelson to reserve ruling until the issue comes up in trial.

This is a sneaky response because West wants to be able to ask a leading question seeking agreement from a witness that the defendant said XYZ. For example, he might ask SPD Investigator Serino this question:

George told you that he killed Trayvon in self-defense, didn’t he?

Bernie de la Rionda (BDLR) would object to the question because it contains an inadmissible self-serving hearsay statement.

Judge Nelson would sustain the objection, but she cannot unring the bell, so to speak. The jury would have heard the defendant’s inadmissible statement.

He also would probably like to mention that self-serving hearsay statement during the defense opening statement to the jury or maybe during jury selection.

The purpose of the State’s motion in limine regarding the defendant’s self-serving hearsay statements is to prevent those events from happening, and I am reasonably certain Judge Nelson has seen this trick before and is savvy enough to see through West’s tactical deception.

Therefore, I expect she will grant the State’s motion.

BTW, the res gestae exception that West mentions is a limited exception to the hearsay rule similar to the present-sense-impression exception in which the hearsay statement about an event occurs as the event happens. Thus, the statement is part of the event itself or the res gestae and cannot be excised from it.

The State’s motion in limine seeking an order prohibiting the defense from mentioning the voice stress analysis test that the defendant took should be granted because that’s the legal rule in Florida and elsewhere. The rule is based on the lack of general agreement among scientists that this type of test can consistently produce accurate and reliable results.

In other words, the test violates the Frye Rule.

Judge Nelson should grant this motion.

The State’s 3rd motion for a gag order asks Judge Nelson to put an end to the defense effort to poison the jury pool by assassinating Trayvon Martin’s good character with false evidence and innuendo publicized after the jury pool of 500 people have received their notices to report for jury service on June 10, 2013.

It is no accident that the defense waited until after the 500 potential jurors were served with their notices, but before they report for jury service. Therefore, this was a deliberate tactic to create an unringing the bell problem regarding false, irrelevant, and inadmissible evidence.

A gag order will not unring the bell.

This is quite possibly the sleaziest tactic that I have ever seen. To intentionally poison a jury pool a couple of weeks before trial with false and misleading information about the victim of a homicide calculated to incite and unite White racists to approve of the execution of an unarmed Black teenager is astonishing.

These two lawyers are fortunate that I am not Judge Nelson because I would jail them for contempt of court and file complaints against the bar association requesting their disbarment from the practice of law.

_________________________________________________

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Fred


Zimmerman defense stumbled into money trap

May 19, 2013

Sunday, May 19, 2013

ChrisNY~Laurie said,

Why haven’t we seen any reciprocal discovery? I’d like to see what the defense has turned over to the State. Do we not get to see reciprocal discovery?

The Defense has expert witness’ that they would like to call via video conferencing at the next hearing, and filed a motion for approval. Does the Judge approve or deny this motion before the next hearing date or wait and tell them during the hearing when she gets to that motion? I haven’t even seen a motion in reply from the State yet, so maybe they have no objections to this. I don’t see how they don’t considering the defense did not name these experts, unless they did through emails or something.

Let’s not place the cart before the horse. Judge Nelson first has to decide whether to grant the defense motion for a Frye hearing. She will decide that motion at the hearing on May 28th.

I do not believe she will grant the motion because O’Mara has not made a proper showing. He needs affidavits from experts asserting that the technology/methodology used by the prosecution’s experts is not generally accepted in the relevant scientific community (i.e., audiologists). He hasn’t done that.

If she were to grant the motion, however, I do not believe she would conduct it via video conferencing. Cross examining someone on a video screen is not the same as cross examining them in person when the witness is not on his own turf with support at the ready off camera. I do not believe Bernie de la Rionda would agree to O’Mara’s request. I certainly would object if I were the prosecutor. I do not believe Judge Nelson would grant O’Mara’s request over de la Rionda’s objection.

O’Mara appears to be caught up in a money trap caused by frivolous expenditures of internet contributions and now he cannot afford experts.

Too bad, so sad.

The answer, as I have been suggesting for several months, is to attempt to get the defendant declared indigent so that the court will pay for the experts, but O’Mara and his client do not want to go there.

I suspect the reason is they do not want the internet fund shut down and turned over to the Court for reimbursement.

Greed and stupidity are quite the double whammy.

They have only themselves to blame.

_________________________________________________

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


Zimmerman voluntarily waived his right in court today to an immunity hearing

April 30, 2013

Tuesday, April 30, 2013

Today’s hearing was a judicial slam-down of the defense motions.

The most important thing that happened was the defendant’s waiver of the immunity hearing. After Judge Nelson placed him under oath, he acknowledged that he knew he had a right to a pretrial immunity hearing and he voluntarily waived that hearing.

In my opinion the waiver is bullet proof and will withstand appellate scrutiny.

At the press conference following the hearing, Mark O’Mara said that they had decided to waive the hearing because it would be better to let a jury decide the case. In my opinion, his explanation is pure spin designed to conceal that he knows his client’s credibility will be destroyed on cross examination. In other words, the defense has no defense.

BOTTOM LINE: He would not have waived the hearing, if he thought he had any chance to win. That overwhelming case for self-defense that O’Mara has been bragging about for almost a year is a bust. He folded when Bernie called his bluff.

Judge Nelson also ruled that the defense was not prejudiced by any of the alleged discovery violations, but she postponed consideration until after trial of whether to order the State to reimburse the defense for fees and costs incurred by alleged delays in providing discovery.

After Mark O’Mara questioned Don West on direct regarding the alleged discovery violations, Bernie de la Rionda did a nice job cross examining him by getting him to admit that the prosecution and defense discovered some information simultaneously, as in the case of Dee Dee’s hand written letter to Sybrina Fulton that she had placed in the family Bible together with other letters of condolence.

West’s effort to make an issue about BDLR failing to disclose that Sybrina Fulton sat next to Dee Dee when she was interviewed also came across as irrelevant nitpicking rather than a Brady violation.

BDLR also nailed West making him look foolish when West could not explain how Dee Dee’s hospital excuse about missing the funeral and wake because she could not face looking at Trayvon’s dead body had anything to do with whether the defendant murdered Trayvon.

We also learned today that the State recently sent the recording of the 911 call with the terrified-fear-of-death shriek to an expert to clean/enhance. The expert has not completed the process or issued a report.

True to form, Judge Nelson denied the defense motions without providing any basis to support a motion to recuse.

The next hearing will be May 28th with motions due no later than May 10th.

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


Probable cause in arrests, initial appearances, informations, and grand jury indictments

April 27, 2013

Saturday, April 27, 2013

I write today to clear up some confusion that I may have caused regarding the purpose of an initial appearance in a federal criminal case. I think I caused the problem by failing to mention that all federal court felony prosecutions must be by grand jury indictment. I cover a lot of basic material that most people do not know about our criminal justice system. This information will help you understand why Dzhokhar Tsarnaev’s initial appearance happened on Monday. I also provide basic information about grand juries, including when and why they were created. Finally, you will have a more thorough understanding of probable cause and its role in our criminal justice system.

In tomorrow’s post I will look ahead to Tuesday’s hearing in the Zimmerman case and express some choice words to describe the new low in sleaziness achieved by Mark O’Mara.

Do not confuse an initial appearance with an arraignment. An initial appearance is a judicial review of a complaint and affidavit for probable cause to determine whether the affidavit actually establishes probable cause or reasonable grounds to believe the defendant committed the crime(s) charged in the complaint. The defendant does not enter a plea at the initial appearance for the simple reason that he cannot be arraigned unless he has been indicted by a grand jury.

The Fifth Amendment provides in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

Many states, including Florida, permit prosecution by information. The Zimmerman case is a good example. Florida permits felony prosecution by information except in capital cases, which must be prosecuted by grand jury indictment. Therefore, State Attorney Angela Corey could have prosecuted the defendant for second degree murder by grand jury indictment or by information. She opted to charge Zimmerman by information thereby avoiding the cumbersome and time consuming effort required to persuade a grand jury to indict him.

Prosecution by grand jury indictment originated in England in order to prevent the king from initiating bogus criminal prosecutions against political enemies for political reasons. Transferring the power to charge people with crimes from the king to a group of citizens was a remarkable accomplishment at the time and a very important step in the long evolutionary process from governance by an unchecked monarchy to governance by elected officials.

We live in a different world where grand juries have become little more than rubber stamps signing off on indictments proposed by prosecutors. This is not surprising since grand juries meet in secret without a judge to supervise the proceedings. Hearsay is permitted because the rules of evidence do not apply and the targets of their investigations are not present. The absence of judicial oversight and the exclusion of suspects and their lawyers from participation in the process permits prosecutors to rig the outcome.

A suspect cannot be arrested or charged with a crime unless there is probable cause (i.e., reasonable grounds) to believe he committed the crime.

In the case of an arrest, the police decide whether they have probable cause. However, police are not lawyers. They can and do make mistakes even when they are acting in good faith. Although prosecution by information transfers the power to charge a suspect with a crime from the police who arrested the suspect to a prosecutor, the test remains the same. The prosecutor must have probable cause to believe the suspect committed the crime. The same is true when the prosecution is by grand jury indictment only now the grand jury is making the decision instead of the prosecutor. Finally, in our legal system we have judicial review of police decisions to arrest and prosecutor’s decisions to charge suspects with crimes. The test is still probable cause but now a judge is making the decision.

Judges also review the issue of detention after police have arrested a suspect and booked him into a jail pending a decision to charge or release a suspect by a prosecutor or the grand jury. Judicial review of probable cause and detention in federal court takes place at the initial appearance.

An arraignment is a judicial hearing that occurs after a person has been charged, whether by information or grand jury indictment. The purpose of the arraignment is to formally notify the defendant that he has been charged with a crime(s) and to record his plea. In both federal and state courts, defendants are required to plead “not guilty.”

There is a good reason for this requirement. Arraignment calendars in state and federal courts are busy affairs. Judges cannot accept a guilty plea unless they are satisfied that the defendant knows what rights he is forfeiting by pleading guilty. The defendant also must provide a statement under oath regarding what he did that is legally sufficient to support the plea. Guilty pleas can take up to 15 or even 30 minutes to complete. Therefore, they are scheduled for a different time.

Magistrate judges in each federal district conduct the initial appearances and arraignments in federal court. Initial appearances are typically scheduled in the afternoon to allow sufficient lead time for federal law enforcement agents and prosecutors to prepare the formal charging document, which we call the complaint, and the supporting affidavit (i.e., sworn statement) for probable cause. The complaint and affidavit are filed in the clerk’s office at the United States Courthouse. In turn the clerk’s office notifies the federal public defender regarding the new arrest and that office assigns the case to a lawyer in the office.

The Pretrial Supervision section of the United States Probation Office also is notified about the new case and they assign it to one of their officers. Their job is to prepare a report for the magistrate judge regarding the defendant and to recommend whether he should be released pending the outcome of the case. They also recommend the conditions of the release.

The United States Marshal’s Office is responsible for transporting the person to court for the hearing.

If this process works smoothly, the defense attorney receives his copy of the complaint and affidavit for probable cause with sufficient time to review and discuss it with the defendant in the lockup at the courthouse before the hearing.

At the beginning of the hearing, counsel for the government and the defendant identify themselves for the record and the magistrate judge informs the defendant of the charge(s) against him in the complaint and the maximum sentence that could be imposed, if convicted. He also advises the defendant of the following rights:

1. Right to remain silent

2. Anything he says can be used against him

3. Right to be represented by the lawyer he chooses, if he can afford the fee and the lawyer files a notice of appearance confirming representation

4. Right to have the court appoint counsel to be paid at public expense, if he cannot afford counsel.

5. Right to be presumed innocent.

6. Right to a jury trial

Most defendants cannot afford counsel and for that reason the clerk’s office routinely assigns the case to the Federal Defender, unless retained counsel contacts the clerk’s office and confirms that he will represent the defendant.

In a multiple defendant case, each defendant is entitled to his own lawyer because acting in the best interests of one client often is not in the best interest of the other client. Assume, for example, that you are representing both defendants. Also assume that the prosecutor contacts you and offers a benefit to one client in exchange for a guilty plea and his agreement to testify against the other client. Congratulations! You now have a conflict of interest and have to withdraw from the case, if it would be in the best interests of the first client to advise him to accept the offer because you cannot advise him to do that without violating your duty to act in the best interests of your other client.

Since your conflict of interest would extend to your law partners, the law firm that employs you, or every other lawyer employed by the Federal Public Defender if you work for them, the district courts maintain a list of experienced and qualified lawyers in private practice who have agreed to accept appointments with financial compensation at the rates set by the court. This list is called the Criminal Justice Administration Panel or CJA Panel.

In multiple defendant cases, the clerk’s office appoints the Federal Public Defender to represent the first defendant. Additional defendants in the same case are each assigned to a CJA Panel attorney. I was a CJA Panel attorney in Seattle for 20 years, so I am familiar with the process.

The process I have described is the same in every federal district in the United States.

This process would have been followed in the Boston Marathon bombing case. Since the Federal Public Defender Office would have known that it would be formally appointed to represent Dzhokhar Tsarnaev on Monday, I am reasonably certain that they assembled a team over the weekend to work on the case. The team would have included at least one or two lawyers, an investigator, and possibly a mitigation specialist.

Subsequent news reports have confirmed that a defense team was assembled over the weekend.

I imagine the lawyer or lawyers attempted to meet with Dzhokhar Tsarnaev at the hospital over the weekend, but were denied access. Law enforcement officials can do that absent a request from the suspect in custody to meet with counsel. I doubt he made that request, if he were intubated, unconscious and unable to speak.

The Magistrate Judge also would have known that she would have to conduct an initial appearance for Dzhokhar Tsarnaev on Monday, assuming he survived until then.

I am relatively certain that arrangements were made on Monday morning to conduct the hearing in the hospital at the patient’s bedside with notification to all parties concerned.

I doubt defense counsel were permitted to meet with their client before the FBI’s interrogation team completed its work.

The Fifth Amendment issue is whether the defendant’s statements will be admissible against him, since he provided them during a custodial interrogation without advice and waiver of his rights per Miranda. The government will argue that the public emergency exception exempted it from having to Mirandize the defendant. The defense will argue that the exception has not been judicially approved and did not apply.

A closely related issue is whether the defendant’s statements were voluntary or coerced, given his medical and mental condition. Was he competent to answer questions?

The Sixth Amendment issue is whether he requested a lawyer at any time before or during the interrogation. We know he could not speak and the interrogation team would have known that. Was he denied pencil and paper at the team’s request before the interrogation? Did he scribble out a request that was ignored?

The remedy for a failure to Mirandize the defendant prior to a custodial interrogation is to exclude his statements from being admitted into evidence.

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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


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