Court Sets Bail at $1 Million in Zimmerman Case

July 5, 2012

Seminole County Circuit Court Judge Kenneth Lester set bail today at $1 million in the George Zimmerman case.

Go here to view his order.

This means that unless Zimmerman has $1 million to post with the Clerk of the Seminole County Circuit Court to secure his release, he will have to pay a bail bondsman $100,000 (the 10% non-refundable fee charged by the bail bondsman to post the company’s bond or promise to pay $1 million to the court if Zimmerman rabbits on the bond). The bail bondsman also will require Zimmerman to secure the bonding company with cash and/or property worth $1 million.

Real estate is typically used to secure a bond this high and, unless Mark O’Mara already has a person or persons lined up with equitable interests in their real estate greater than $1 million, it may take awhile to put a deal together that satisfies the bonding company. A current appraisal of the properties reliably indicating their fair market value, reports on the financial status of any loans secured by those properties and a title report are normally required.

As y’all know, I would have issued an order denying bail based on Zimmerman’s role in misrepresenting to the court that he was indigent while at the same time he conceived and directed the efforts of at least two family members (his wife and sister) to carry out a scheme to conceal his possession of $155,000 donated to him over the internet by transferring the money into their accounts before his bail hearing and transferring it back into his account after he bonded out.

Although Judge Lester characterized Zimmerman’s misconduct in substantially similar language, including a reference to Zimmerman’s failure to surrender the second passport such that it would not have been unreasonable for the court to have concluded that Zimmerman carried out this fraudulent scheme with the intent of fleeing the country, he decided to increase the bail substantially rather than deny bail because the State of Florida had not charged Zimmerman with any crime.

I interpret his decision as sending a message to the prosecution basically telling them that he does not believe he should deny bail to Zimmerman unless they charge Zimmerman with a crime. He even mentions a charge of criminal contempt as one possibility.

I have written about the possibility of charging Zimmerman with perjury based on his conduct directing his wife’s efforts to hide the money from the court. Her perjured denial under oath of any knowledge regarding how much money had been received from donors via the internet is but a natural and reasonably foreseeable consequence of Zimmerman’s scheme to conceal the money from the court. Nevertheless, convicting him of perjury on an accomplice theory may be difficult without his wife’s assistance and willingness to testify that he told her to lie to the court, if the judge or the lawyers asked her if she knew how much money had been donated.

If the prosecutors want George Zimmerman to be in jail for the duration of this case, they should not have any doubt as to what they must do to secure that outcome.

Meanwhile I do not believe Judge Lester’s order can reasonably be interpreted as an expression of doubt regarding the strength of the prosecution’s case against Zimmerman for killing Trayvon Martin. He explained that he initially found that the prosecution’s case was “strong” because the defendant did not testify at the first bail hearing and the defense did not present any evidence of self-defense. He also specifically characterized the evidence presented by the defense at the recently concluded bail hearing in support of Zimmerman’s claim of self-defense as having “little relevance” to the issue of bail.

Therefore, I caution against assuming that Judge Lester has formed an opinion or reached any conclusions regarding the viability of Zimmerman’s claim of self-defense.


The Court Should Deny George Zimmerman’s Motion for Bail

July 4, 2012

CherokeeNative posted a comment asking me whether Zimmerman’s statements to police and others will be admissible during the trial.

CherokeeNative said the prosecutor mentioned in court recently that the defense will not be permitted at trial to introduce any of Zimmerman’s statements to police and others. Instead, Zimmerman will have to take the stand and testify, if he wants to present his defense.

I did not watch the hearing, but I imagine the prosecutor was expressing some understandable frustration that O’Mara has been trying his case during a bail hearing, instead of specifically explaining why Zimmerman should be permitted to secure his release by posting another bond after conspiring with his wife to materially deceive the court by claiming indigency when they knew he had received approximately $150,000 donated to his PayPal account at his internet site. The prosecutor wants to cross examine Zimmerman about about all of his coded machinations to, in essence, play a shell game with the court to hide the money. No doubt he’s also tired of O’Mara’s constant repetition of Zimmerman’s statements to police and his claims that Zimmerman’s injuries establish the truth of those statements.

He no doubt knows more than we know and we know that Zimmerman lied. Therefore, I can understand his frustration. Nevertheless, he will get his chance, so he will have to be patient.

Okay, put on your waders because we are about to trek through a muddy swamp called the hearsay rule.

First, every oral or written assertion, including non-verbal conduct, if intended as an assertion, that George Zimmerman made outside the courtroom regarding what happened in this case is hearsay, if offered by the defense at a hearing or during the trial to prove that whatever he asserted is true.

Why? Because hearsay is defined in evidence rule 801 as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Second, hearsay is not admissible, unless pursuant to another evidentiary rule or exception.

The effect of these rules means that a defendant in a criminal case cannot introduce at a hearing or at trial a prior statement that he made, if he offers the statement to prove what he asserted in the statement.

Example: A detective is testifying in a bank robbery trial and the defense attorney asks, “My client told you that he was at work that day and did not rob the bank, didn’t he?”

The question is improper because it’s being offered by the defense to prove that the defendant did not rob the bank.

What happens, however, if the prosecutor seeks to offer the statement because it can prove the defendant was not at work as he claimed?

Answer: The defendant’s statement is admissible because it’s an admission by the party opponent, who is the defendant in this hypothetical. See evidence rule 801(d)(2).

The purpose of the admission-by-a-party-opponent rule is to permit a party to introduce statements by the opposing party. To simplify that process, rule 801(d)(2) exempts such statements from the hearsay rule.

Bottom Line: None of Zimmerman’s statements to the police will be admissible at his trial, unless the prosecution offers them. Do not expect the prosecution to do that, unless it is offering them into evidence to prove that he lied.

Note that Zimmerman also made statements to various medical people.

Question: Are those statements admissible?

Answer: Yes, under evidence rule 803(4), provided his statements were made “for purposes of a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof as reasonably pertinent to diagnosis or treatment.”

Note that we are likely to see issues arise regarding the admissibility of any statement Zimmerman made to a medical person, if the statement contains an assertion about what happened during the confrontation and struggle (i.e., who did what to whom). That portion of his statement will fall outside the boundary of the medical-diagnosis exception to the hearsay rule, if it is not “reasonably pertinent to diagnosis or treatment.”

The purpose of this exception to the hearsay rule is to admit statements that are elicited in response to questions asked by medical personnel to diagnose and treat an injury or illness. The patient/defendant might make any number of statements about any number of things that are not “reasonably pertinent to diagnosis or treatment.” Such statements do not fall within the exception and would be excluded as inadmissible hearsay, if offered to prove the truth of the matter asserted in the statement.

I have no reason to believe that Judge Lester does not know the hearsay rule. Judges have considerable latitude to admit evidence at pretrial hearings, such as a bail hearing, that would not be admissible at a jury trial. Judges are presumed to know the rules of evidence and not base their decisions on evidence that they would not permit a jury to hear.

I believe Judge Lester is giving the defense wide latitude to present whatever evidence it wants to present because most judges I know routinely do that at pretrial hearings. The prosecutor is complaining because that is what prosecutors do to periodically remind a judge that the defense is wandering far afield instead of addressing issues specific to the hearing.

The specific issues I would ask the defense to explain, if I were the judge are:

1. Why did George Zimmerman misrepresent to the court that he was indigent and conspire with his wife, Shellie Zimmerman, to conceal from the court that he had received $155,000 from donors to his internet account?

2. Why should the court not conclude that he is a flight risk and cannot be trusted, given hisirresponsible judgment and egregious behavior in misrepresenting that he was indigent when he knew he was not indigent, and his decision to involve his wife and sister in a scheme to use their bank accounts to hide the $155,000 and to deny any knowledge about that money, if asked under oath, in order to conceal it from the court?

3. Doesn’t George Zimmerman’s irresponsible judgment and egregious behavior in involving members of his family in a scheme to falsely claim indigency, conceal $155,000 in assets, and lie about it, if necessary establish that he is a danger to others, if released.

I would deny the defense motion.


Is George Zimmerman About to be Charged with Perjury?

June 26, 2012

We have a bond hearing coming up on Friday, but I do not believe Zimmerman has a realistic chance to get bail. The recorded jailhouse telephone calls leave no doubt that he and his wife conspired to conceal the $155,000 that they had at their disposal when they were claiming indigency. She actually lied under oath in court and there is little doubt her husband put her up to it.

Then there is the troubling matter of the passport . . .

She cannot testify because she is charged with perjury and her lawyer will advise her not to testify because anything she might say can and most assuredly will be used against her.

He is in the same position, even though he is not charged with perjury, yet.

That’s right, folks.

Just because he has not been charged with perjury, does not mean that he won’t be charged.

So let’s take a look at the subject of accomplice liability for criminal behavior.

Section 2.06(3) of the Model Penal Code defines an accomplice:

A person is an accomplice of another person in the commission of a crime if:

(a) with the purpose of promoting or facilitating the commission of the offense, he

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it; or

(iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or

(b) his conduct is expressly declared by law to establish his complicity.

By now, I think most of us have listened to the recorded jailhouse conversations between GZ and SZ. Although I do not recall a conversation in which GZ and SZ specifically discussed a strategy to use in court to conceal the $155,000 he had received in donations to his PayPal account, there is no question that, pursuant to his instructions, she moved all of that money around in amounts less than $10,000 each time between three accounts (theirs and his sister’s) during the four-day period before the bond hearing.

When she was questioned at the bond hearing regarding whether she could estimate how much money was in the PayPal account, she responded that she had no idea. That response is the basis for the perjury charge.

The issue is whether GZ acted as her accomplice. If he did, he also committed perjury and is just as responsible as his wife under the law, even though he is not the one who lied in court.

To successfully prosecute GZ for perjury, the prosecution must be able to prove beyond a reasonable doubt that, for the purpose of concealing the $155,000 asset from the court in order to be found indigent at the bond hearing, he solicited or aided SZ to deny the existence of that asset while testifying as a witness under oath at the bond hearing.

The unusual machinations with the money by themselves demonstrate an effort to conceal the money, albeit an unsophisticated one. For example, bank to bank transfers do not meet the definition of currency. Therefore, there is no legal requirement imposed on a bank or credit union to report transactions exceeding $10,000 to the IRS. If SZ had transferred the entire $155,000 in one transaction, the credit union would not have generated a Currency Transaction Report to the IRS.

By structuring the transaction in amounts less than $10,000 however, the credit union would have generated a Suspicious Activity Report to the IRS, which likely will investigate what happened.

The final ironic twist is that the $155,000 is a non-taxable gift to GZ.

They went to all of that trouble to conceal the money and only succeeded in drawing unnecessary attention to themselves.

The question is, did they go to all that trouble to conceal the money from the IRS or did they do it to conceal the money from the court, or both?

Moving the money around coupled with the lie in court indicates both.

I think the prosecution needs SZ’s cooperation to prosecute GZ for perjury, so I believe it will be willing to play let’s make a deal with her to nail him by providing the evidence that proves the shared intent element of accomplice liability.

That brings me back to the two passports.

Were they planning a quick trip out of the country with the money, if the case started to go sideways? For example, were they planning to to wait and see how the SYG hearing went and if GZ lost, were they going split?

Then again, maybe they were just attempting to conceal the money from the lawyer, who was being an incredibly nice guy for taking the case on a pro bono basis because he liked GZ and believed they did not have any money.

Do you think SZ decided on her own to lie to the court?

Will she snitch to avoid a felony conviction and a likely prison sentence?

If she flips, do you think the deal might come together before the bond hearing?

I imagine the prosecution certainly would love to flip her before the hearing this Friday because it would guarantee that Judge Lester would deny GZ’s motion for bond and enormously complicate his already shaky defense against the murder charge.


Shellie Zimmerman Arrested and Jailed for Perjury

June 12, 2012

Shellie Zimmerman was arrested today and jailed for perjury, based on her false claim of indigency under oath at the bond hearing at her husband’s bond hearing. She posted a $1,000 bond and was released about an hour later.

The Orlando Sentinel is reporting:

In an affidavit, prosecutors revealed new details about Shellie Zimmerman’s alleged efforts to hide money from the court.

Four days before she testified to having no knowledge of the funds, the affidavit says, Shellie Zimmerman began a series of transfers into her account — totaling $74,000 between April 16 and April 19.

The affidavit says about $47,000 more was transferred from George Zimmerman’s account to his sister’s [account]. Shellie Zimmerman withdrew about $18,000 more cash, prosecutors say.

Prosecutors say the Zimmermans used a rudimentary “code” to discuss the money in recorded jailhouse phone calls — referring to $100,000, for example, as “$100.” At least two of the calls, the state alleges, were made while Shellie Zimmerman and her husband’s sister were at a local credit union making the transactions.

“In my account do I have at least $100?” Zimmerman asked. “No… there’s like $8. $8.60,” she replied.

Zimmerman told his wife to “pay off all the bills” with the money, prosecutors said, including an American Express card and a Sam’s Club card. He also instructed her on how to pay for his bail.

According to the affidavit, after her husband was released on bond days after the bond hearing, she transferred more than $85,000 back into his account. A branch manager at their credit union told prosecutors he knew the couple, and saw Shellie Zimmerman talking to her husband on the phone on April 16.

The manager said he’d helped Shellie Zimmerman transfer control of George Zimmerman’s account, at one point speaking directly to George Zimmerman by phone.

In addition, USA Today is reporting that Judge Lester, who presided over the bond hearing and to whom the case is preassigned filed an order earlier today stating in part,

Lester concluded that Zimmerman’s wife had “testified untruthfully” about her husband’s finances at his initial bond hearing and that Zimmerman had failed to tell the court about one of his two passports.

Lester also noted that the evidence against George Zimmerman “is strong.”

“Most importantly, though, is the fact that he has now demonstrated that he does not properly respect the law or the integrity of the judicial process.”

Devastating news for George Zimmerman.

At this point, I do not believe Mark O’Mara can represent Shellie Zimmerman because, to do so, would create a conflict of interest. His primary duty is to represent and protect George Zimmerman, his client. Needless to say, if George put her up to this, her best interest would be to rat him out and her own lawyer likely would advise her to do so.

Meanwhile, O’Mara may have some potential legal issues to deal with also. How could he not have known about the money in the Paypal account? And what about the second passport that he apparently had in his possession. Did he knowingly participate in the fraud perpetrated by the Zimmermans?

I have a feeling the bond hearing will be stricken due to these recent developments. It is an incredibly dangerous minefield for George and Shellie Zimmerman, for George’s sister, and potentially for Mark O’Mara and even George’s father.

If the hearing goes off as scheduled, expect the prosecution to be beating a drum repeatedly with the following question,

What did you know and when did you know it?


Judge Recuses Herself In Zimmerman Case

April 18, 2012

As I predicted in my last post, Judge Jessica Recksiedler of the Seminole County Circuit Court in Florida signed an order today granting George Zimmerman’s motion to recuse her from presiding over the Zimmerman case.

I did not need a crystal ball or a book of spells to predict the outcome since, by advising counsel that she had a potential conflict of interest about which they might not have been aware without her telling them, she basically invited the motion to recuse and I do not believe she was the least bit offended by the motion.

The potential conflict is that her husband is employed by a criminal defense lawyer, Mark NeJame, who has been a television commentator about the case. Someone in Zimmerman’s family contacted him about representing Zimmerman after Zimmerman fired the two lawyers who were representing him. He declined to take the case, in part because he had expressed opinions about it on television, and he recommended several lawyers, including Mark O’Mara, whom Zimmerman subsequently retained.

I do not believe Judge Recksiedler had an actual conflict of interest, but I would be surprised to discover that she and her husband had not discussed the case, especially after NeJame was contacted about representing Zimmerman before the prosecutor, Angela Corey, charged him with murder second degree.

Judges are supposed to abide by a code of judicial conduct and, in addition to recusing themselves when they have an actual conflict of interest, such as a financial interest in the outcome of a case before them, they are supposed to maintain the appearance of fairness and impartiality, regardless of what they may think about a case, the lawyers, and the litigants. Since there is a possibility that someone might question her impartiality, due to her husband’s connection to NeJame, she decided to disclose it in order to maintain the appearance of fairness.

For all I know, she might not have wanted the case anyway because she is relatively new to the bench and inexperienced. She may have used the situation to get out of it. I do not know that for certain and merely present it here as a possibility.

Jennifer Preston of the New York Times reports that,

Judge Recksiedler will be replaced by Judge Kenneth R. Lester Jr., 58, who was first elected to the court in 1996. Mr. Lester graduated from the University of Central Florida with a bachelor’s degree and a master’s degree in accounting. He received a law degree from the University of Florida.

Zimmerman’s motion to be released on bail pending trial is set for Friday. I imagine Judge Lester will proceed with the hearing, unless he has a conflict with his schedule that necessitates rescheduling the bail hearing. Those types of hearings do not usually require a lot of preparation time for a judge.

Judge Lester will also have to schedule a hearing for the pending motion filed by various news organizations, including the Miami Herald, to unseal the court file.

The issues at the bail hearing will be whether Zimmerman is a flight risk or a danger to the community and whether there are conditions of release that could be imposed that would not endanger anyone in the community and assure that Zimmerman makes all his court dates.

Since he turned himself in, I think he’s shown that he probably is not a flight risk and it’s possible that he might be released subject to the following conditions:

1. Reside at home and wear an ankle bracelet and GPS locator at all times;

2. Not possess a firearm;

3. Remain in contact with his lawyer;

4. Check-in daily with the court’s pretrial supervision officer and follow any orders the officer might impose; and

5. Post a cash bail in some substantial sum of money (apparently, murder second degree is not a bondable offense).

A bond is a promise to pay a certain sum of money in the future, if the defendant fails to show up in court when he is supposed to be there.

Let’s say bail is set in the amount of $100,000. It probably will be substantially higher but $100,000 is an easy number with which to work, so I will use it. Zimmerman could get out by posting $100,000 cash with the Seminole County Circuit Court Clerk, or if the offense were bondable, he could post an approved unencumbered real estate property bond with a fair market value of at least $100,000 together with a quitclaim deed quitclaiming the property to the Clerk of the Court and recording the transaction with anything but MERS. Yes, that’s snark. He would record the transaction in the county recorder’s office.

Or he could post 10% of the bail ($10,000 cash) with a bail bondsman and property worth $100,000. When someone goes with a bail bondsman, the bondsman posts its promise, or bond to pay the full amount of the bail to the Clerk of Court, if the defendant fails to make his court appearances. The 10% cash amount up front is called the principal and bondsman gets to keep that as the fee for posting the bond, regardless if the defendant makes all of his court appearances.

The property that secures the bond that the bail bondsman posts with the Clerk is called the security or collateral and, if the defendant makes all of his appearances, the bail bondsman will return it to the person who posted it when they showed up with the 10% cash fee.

Since murder is not a bondable offense in Florida, however, the bail bondsman option is unavailable to Zimmerman and he will have to come up with the cash.

But he has to pay the lawyer’s retainer first and I imagine that it is substantial, probably well in excess of $100,000. Whether there will be enough money left over to post a cash bond is anybody’s guess. I imagine that there has been some mad scrambling going on in the Zimmerman family to get together enough cash to do both. We will have to wait and see what happens.


%d bloggers like this: