O’Mara and West will never collect the $2.5 Million fee.

December 1, 2013

Sunday, December 1, 2013

Good afternoon:

I write today to criticize Mark O’Mara and Don West for charging a $2.5 Million fee for representing George Zimmerman. I believe O’Mara’s announcement after the trial ended regarding the fee probably violates the fee agreement that he reached with Zimmerman before officially entering the case. Pursuant to that agreement, he agreed to represent Zimmerman pro bono. In other words, he agreed not to charge a fee.

A fee agreement is an enforceable contract under the laws of the State of Florida and I believe Zimmerman would have a good chance to prevail, if he challenges the fee on the ground that it violates the fee agreement.

Costs are a separate matter. Clients are always responsible for paying the costs win, lose or draw.

Costs typically include court reporter fees for deposition transcripts, expert witness fees and investigation fees to name a few.

I recall O’Mara announced several weeks after trial that, as the prevailing party in a self-defense case, he had submitted a cost bill for $200,000 to the State of Florida. I do not know if the State has paid some or all of the creditors, but I think it will pay most, if not all of the costs.

Lawyers generally do not charge their clients by the hour in criminal cases, unless they are representing a rich client or a corporation. Instead, they charge a non-refundable retainer up front that will compensate the lawyer for the time spent working on the case, assuming it does not go to trial. If the case is unlikely to be resolved without a trial, the lawyer will request an additional non-refundable fee to cover the time spent trying the case.

I am going to guess that O’Mara and West did not think about an hourly fee until they started filing motions for sanctions and terms against the prosecution for various alleged discovery violations. Since they were seeking compensation for the additional time they had to work on the case due to the alleged misconduct, they had to come up with the total number of hours for the extra work and multiply it by an hourly amount.

Voila! O’Mara claimed a rate of $400/hour and West claimed $350/hour.

Most criminal defense lawyers base their non-refundable retainers on an estimate of the time they will devote to the case at an hourly rate of compensation.

Of course, I do not believe Zimmerman will ever pay any portion of the $2.5 Million. I do not believe the civil suit against NBC will be successful.


How can we prevent cyber bullying

October 19, 2013

Saturday, October 19, 2013

Good afternoon:

On September 9th, 12-year-old Rebecca Sedwick jumped to her death from a tower at an abandoned cement plant in Polk County, Florida. She committed suicide because she could no longer endure a vicious campaign of cyber bullying by two girls and their friends. The two girls allegedly started bullying Rebecca because they were jealous of her relationship with a 13-year-old boy. The bullying continued for almost a year and persisted even after the relationship with the boy ended.

The case has been in the news recently because police arrested the two girls on Monday and charged them with aggravated stalking. The 12-year-old girl has publicly admitted she was wrong and apologized to Rebecca’s mother, but the 14-year-old girl posted a comment on Facebook acknowledging,

Yes ik I bullied REBECCA nd she killed her self but IDGAF!!!!

The Polk County Sheriff has publicly chastised the 14-year-old’s stepmother because she denied knowledge of the bullying and defended the girl saying her facebook account had been hacked.

He said “she doesn’t get it,” and “the apple doesn’t fall far from the tree.”

He said he is considering charging her with contributing to the delinquency of a minor.

The stepmother was arrested yesterday and charged with two counts of child abuse for slugging two children. She claims that she was only attempting to break-up a fight between the two victims. The incident was captured on video.

Rebecca’s suicide has focused national attention on cyber bullying and internet stalking. Crane and I know something about that because certain members of the right-wing hate-machine have been stalking us for over a year. Some of our readers who have websites also have been targeted by obsessed and twisted haters.

People have different ways of dealing with the haters. I ignore them. Young people like Rebecca are more vulnerable and wound more easily. Teenagers lack maturity and can be especially cruel. In a culture where many people believe that it’s cool to be cruel, there can be little doubt that we will see more preventable tragedies like Rebecca’s.

The question is what, if anything, do we do about it?

Ironically, Mark O’Mara is in the news again for his effort to draft legislation that would hold parents accountable for cyber bullying by their children. The statute would create a duty to know what your kids are doing on line and criminalize a failure to prevent your kids from cyber bullying.

There are four major problems with this effort.

First, criminal laws traditionally prohibit certain acts accompanied by a particular mental state. One of the most basic principles of criminal law is that you have to know what you are doing when you commit a prohibited act. You do not have to know the act is prohibited, but you do have to know what you are doing when you commit the act.

Second, criminal laws traditionally do not create duties to supervise others and criminalize the failure to discover objectionable conduct and prevent it.

Third, many teenagers are more knowledgeable than their parents about using the internet and there are ways they can access the internet without their parent’s knowledge.

Fourth, are the police going to be monitoring internet activity to prevent cyber bullying and, if so, is that a good idea?

As a society, we have a tendency to respond to tragedies by enacting new criminal laws. However, criminal laws cannot solve all of our problems.

The importance of education and workshops in changing human behavior should not be underestimated.

What do you think?


George Zimmerman can be served with divorce papers by publication

September 24, 2013

Tuesday, September 24, 2013

Good morning:

George Zimmerman can be served with divorce papers by publication.

Florida Statutes 49.021: Service of process by publication, upon whom.—Where personal service of process or, if appropriate, service of process under s. 48.194 cannot be had, service of process by publication may be had upon any party, natural or corporate, known or unknown, including:

(1) Any known or unknown natural person, and, when described as such, the unknown spouse, heirs, devisees, grantees, creditors, or other parties claiming by, through, under, or against any known or unknown person who is known to be dead or is not known to be either dead or alive.

When a lawyer representing a party to a lawsuit, or a party representing himself without a lawyer, cannot serve a summons and the complaint or petition on the opposing party because he cannot locate the opposing party, the law permits service to be accomplished by publishing a copy of the summons and the complaint in the local newspaper every day for 90 successive days.

Publication in the Orlando Sentinel would suffice.

At the end of the 90 days, the lawyer must file an affidavit of service by publication attaching the summons and complaint or petition and describing the efforts undertaken to find the opposing party.

Service by publication will not be deemed effective, unless all reasonable efforts to locate the opposing party were attempted without success.

In the typical case, the party attempting to obtain service on the non-responding party, goes to court to obtain an order of default after the time period within which to respond to the complaint or petition expires, which is usually 20 days and starts running after the 90 day period for service by publication.

The purpose for requiring all reasonable efforts to serve the opposing party in person before resorting to service by publication is to prevent a party from obtaining a default judgment against another party without actual notice to them.

Someone in the comments mentioned the possibility that Shellie’s lawyer, Kelly Sims, might be able to serve Mark O’Mara with the divorce papers, however, the attorney typically has to agree to accept service for the client and I doubt he would agree to do that since he announced that he will not represent him on the divorce and may not know where he is living or even be in contact with him.

My impression is GZ has refused to assist O’Mara to recoup his costs in the criminal case and O’Mara no longer wants to have anything to do with him with the single exception of the pending NBC lawsuit that probably is not worth anything, given the acquittal.

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What do you all think of Chief Bracknell’s emails about George Zimmerman

September 13, 2013

Friday, September 13, 2013

Good evening:

Lake Mary Police Chief Steve Bracknell has described George Zimmerman as a time bomb waiting to explode in Sandy-Hook fashion, which has been my impression for a long time.

Frankly, I will be surprised if he does not kill Shellie Zimmerman or her lawyer Kelly Sims. Even Mark O’Mara might be at risk.

Here is a link to the emails.

Here’s Trained Observer’s comment from a little earlier today incorporating an earlier comment by Bandit:

Finally a voice of reason from law enforcement. Here’s an MSNBC report via FreakoutNation:

Florida Sheriff: If I had the authority, I would consider revoking Zimmerman’s Firearm License

September 13, 2013
By Bandit

Stating he has serious concerns about George Zimmerman’s actions, Police Chief Steve Bracknell said today that if the had the authority, he would consider revoking George Zimmerman’s firearm license, MSNBC reports. Bracknell is police chief in the city where Zimmerman resides.

Steve Bracknell, the chief of police in Lake Mary, said during a telephone interview with NBC News, “I’m a small-town police chief. If I had the authority to revoke his firearm license, I would certainly sit down and consider that.”

“Does anyone else except me see a pattern?” Bracknell added. “The word firearm keeps popping up.”

Although no gun was found on Zimmerman during the most recent incident this past Monday, Bracknell stated that Mr. Zimmerman did have a gun in his car.

In an email exchange reported by Think Progress, Chief Bracknell did tell a concerned citizen that Zimmerman had a gun in his car.

Bracknell wrote, “We did not have the authority to search his truck. He DID have a firearm in the truck. Having a firearm is not a violation of Florida law.”

Zimmerman’s former attorney previously stated on Monday that Mr. Zimmerman did have a gun.

The chief also wrote in response to the citizen’s suggestion that police in Florida were covering for Zimmerman, “REST ASSURED, the last thing on planet earth I want is ANY relationship with the Zimmermans. PERIOD.”

Bracknell also told NBC News he has “concerns” about Zimmerman. “I think a lot of people do,” Bracknell said.

Lake Mary resident Santiago Rodriguez, upset that police failed to file charges, fired off a strongly worded email – criticizing the department and Zimmerman.

Rodriguez calls Zimmerman a “ticking time bomb” and says he’s another “Sandy Hook” waiting to happen… apparently comparing him to someone capable of a mass shooting. In response to the email dated Sept 10th, 2013, Chief Steve Bracknell said “Your reference to Sandy Hook… I agree.”When contacted by the site for comment on his initial agreeance, Chief Bracknell distanced himself saying he was “referring to the fact that [Zimmerman] seems to be involved in incidents” involving firearms.

Charles P. Pierce at Esquire writes, “OK, that’s the least convincing “walk back” I’ve ever read. The guy wrote, “Sandy Hook.” The chief said, specifically, “Sandy Hook…I agree,” but now he says that he was agreeing with something else? Nope. Dog won’t hunt. Which is not to say that Crimebuster George isn’t “involved in incidents involving firearms.” He’s certainly been that.”

Earlier this week, there were doubts regarding whether Chief Bracknell actually said these things. Well, not any longer because he has basically confirmed them.

Your thoughts?


Mark O’Mara will be billing the State of Florida $200, 000 to $300,000 for costs in Zimmerman case

August 27, 2013

Tuesday, August 27, 2013

Good morning:

The Orlando Sentinel reported late yesterday:

George Zimmerman, the Neighborhood Watch volunteer who killed Trayvon Martin, plans to ask the state of Florida to cover $200,000 to $300,000 of his legal expenses, his attorney told the Orlando Sentinel Monday evening.

Because Zimmerman was acquitted, state law requires Florida to pay all his legal costs, minus the biggest one: the fee that goes to his lawyers.

That includes the cost of expert witnesses, travel, depositions, photocopies, even that animated 3-D video that defense attorneys showed jurors during closing argument that depicts Trayvon punching Zimmerman.

Florida Statute 939.06 provides:

Acquitted defendant not liable for costs.–No defendant in a criminal prosecution who is acquitted or discharged shall be liable for any costs or fees of the court or any ministerial office, or for any charge of subsistence while detained in custody. If the defendant shall have paid any taxable costs in the case, the clerk or judge shall give him or her a certificate of the payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to the defendant.

(emphasis supplied)

The Orlando Sentinel is correct. The statute does not authorize reimbursement for attorneys fees.

I do not doubt that the costs are substantial, but the statute limits them to “costs or fees of the court or any ministerial office.”

O’Mara will have to submit a cost bill itemizing the costs and fees that he has paid or owes to others and the Judicial Administrative Commission will decide how much it will pay.

In most states the cost bill is submitted to the trial judge for approval and then presented to a state judicial commission that decides how much it will pay.

I imagine that the JAC has well established rules and guidelines regarding what it will pay and how much it will pay.


A tale of two psychopaths: Castro and Zimmerman

August 1, 2013

Thursday, August 1, 2013

Good evening to all of our friends:

Ariel Castro was sentenced today in Cleveland to life without possibility of parole, plus 1,000 years, a $100,000 fine, and court costs.

He will never be released from prison.

Crane and I liveblogged the 4.5 hour sentencing hearing via livestream. If you missed it, please go here.

Michelle Knight spoke at the sentencing and you can watch her here.

Amanda Berry, her young daughter and Gena de Jesus, the other three victims did not attend the hearing. Family members spoke for them.

Castro’s full statement to the court is here.

He denied being a monster or a violent man and insisted that they were a family and harmony prevailed.

About as fine an example of a psychopath denying responsibility for and minimizing his criminal conduct as you are likely to find.

Which brings me to another man without a conscience, George Zimmerman.

Unlike Ariel Castro, who will never be released from prison, Zimmerman is out and about packing a gun and was last seen in Texas where he was stopped for speeding and warned not to load his gun and to put it away in his glove compartment.

He didn’t get a ticket.

Ohio law enforcement did its job in Cleveland. The Sanford Police Department in Sanford did not.

These two cases offer a great illustration of the difference between honest cops who knew what they were doing and corrupt cops who knowingly and intentionally freed a remorseless killer just because he killed a black kid.

Finally, I was pleased to see two defense attorneys who did the right thing. As Crane just said, Mark O’Mara probably would have put the victims on trial claiming they were responsible because they were whores and they wanted to be enslaved.

What’s on your mind tonight?

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Prosecution delivers in seventh day of trial in Zimmerman case

July 2, 2013

Tuesday, July 2, 2013

Good afternoon:

This was a strong day for the prosecution.

Today’s session began with Judge Nelson instructing the jury to disregard Investigator Chris Serino’s testimony that he believed the defendant told the truth. Judge Nelson had ruled in limine before the trial began that police officers cannot express their personal opinions as to the defendant’s guilt or innocence or whether he told the truth. Defense attorney Mark O’Mara violated that order when he asked Serino if he believed the defendant. Therefore, Judge Nelson properly ordered the jury to disregard Serino’s answer.

If the shoe had been on the other foot and a prosecutor had asked the lead investigator if he believed the defendant when he denied guilt and the answer was “No,” a mistrial would have been declared and the jury would have been sent home. If the error were deemed deliberate (i.e., provoked) because the trial was not going well, the Double Jeopardy Clause would prevent a retrial

Although not much was said about what happened, it was a very serious error and an extremely sleazy move by O’Mara.

In any event, Serino was defending how he handled the case before it was taken away from him. He had formed his opinion based on eye and ear witness testimony, the defendant’s statements, and his recorded NEN call. He did not have the benefit of considering the forensic evidence that has not been introduced yet and the autopsy report.

In a strong redirect, Bernie de la Rionda reviewed several inconsistencies in the defendant’s statements, such as his claims that he forgot the name of one of only three streets in his neighborhood, his claim that he had to walk all the way to Retreat View Circle to look for an address when they were right in front of his face on Twin Trees Lane, and his claim that he did not follow Trayvon Martin even though he admitted that he went in the same direction.

The State played the Hannity interview in which the defendant denied knowing anything about the SYG law, expressed no regrets, and said it was all according to God’s plan. He said he did not believe Trayvon Martin was afraid of him and also said he was not afraid of Trayvon Martin whom he described as “skipping away” instead of running away.

Dr. Valerie Rao, a forensic pathologist and assistant medical examiner testified that the defendant’s injuries to his face were minor and insignificant and could have been caused by a single blow.

The State was going to follow that testimony with the testimony of a professor at the local community college introducing the defendant’s textbook and course work on the law of self-defense and Florida’s Stand Your Ground law. They also had his application for employment with a police force in a county in Virginia and an application to ride-a-long as a civilian with a Sanford police officer.

Defense objected and Judge Nelson gave the defense until tomorrow morning at 8:30 am to prepare a response.

This was a strong day for the prosecution.

(H/T to disappointed for reminding me to include the defendant’s description during the Hannity interview of Trayvon “skipping.”)

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