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.


Defense files pretty glittering balloon to keep hope alive in Zimmerman case

March 26, 2013

Tuesday, March 26, 2013

The defense filed a specious motion yesterday afternoon in the Zimmerman case seeking a sternly worded judicial rebuke of alleged prosecutorial misconduct, imposition of terms (i.e., a fine), and attorney’s fees.

This is yet another whining complaint about W8’s (Dee Dee) statement that she did not attend Trayvon Martin’s funeral because she was not feeling well and went to the hospital.

I think it is an attempt to distract the public’s attention from the defense decision several weeks ago to forego an immunity hearing, thereby implicitly admitting that it has no defense. Instead, by resorting to the well known propaganda technique of repetition while aided and abetted by a compliant media ever so eager to repeat anything they say, regardless of merit in the self-interest of securing higher ratings and increased profits by providing so-called “balanced” coverage that promotes the illusion of a legitimate defense, the defense seeks to link the words “liar” and “perjurer” with Dee Dee so that the public, and hopefully the jury, will already have decided to disregard her testimony.

Watch the pretty glittering balloon and for God’s sake don’t you dare look at my hands.

In this latest iteration of the Dee-Dee-is-a-liar mantra, the defense asserts that she admitted during her deposition on March 13th that she lied about going to the hospital when Benjamin Crump interviewed her last March and later to Bernie de la Rionda because Trayvon’s mother, Sybrina Fulton, was present.

The defense claims that this revelation constitutes exculpatory evidence that the prosecution knew about and should have disclosed to the defense months ago. Of course, the defense would have known this information months ago, if it had bothered to depose Dee Dee, so the defense claim is specious.

As I have previously pointed out, Dee Dee’s admission that she lied about going to the hospital is not material, so it cannot be the basis of a perjury charge as it does not make it more or less likely that the defendant acted in self-defense when he killed Trayvon Martin. It’s what lawyers and judges call impeachment on a collateral matter.

I am certain Mark O’Mara and Don West know this and I believe it’s unfortunate that they have repackaged their war against Dee Dee as unethical prosecutorial misconduct.

When Judge Nelson inevitably denies the defense motion, can we expect the defense to follow-up with a motion to recuse herself from the case?

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Is Mark O’Mara Cutting His Losses and Heading for an Exit?

January 31, 2013

Thursday, January 31, 2013

Best wishes to all of you who live in the South and Midwest. A hellish storm peppered with tornadoes, thunderstorms, torrential rain and golf-ball sized hail passed through this large area as a cold front with temperatures below freezing danced with a dense area of warmer air from the gulf. I live in western Kentucky where the temperature now is 32 degrees. Tuesday afternoon and evening the temperature reached 70 degrees. Yesterday featured wild windstorms, rain, flooding and decreasing temperatures. That made for an interesting motorcycle ride to the store late yesterday afternoon. Fortunately, we are OK.

Seventy degree temperatures, large menacing black clouds punctuated with lightning, tornadoes and 40 degree temperature swings do not belong in January.

Or February.

I hope everyone is safe and in good spirits this morning.

Xena gets the credit for inspiring me to write this article about the $40 K that O’Mara spent to upgrade his office.

She said:

” The $40,000 of equipment and office space should be considered an asset to O’Mara’s firm. If I had a lawyer who charged me to expand and equip his office, I would first think that he isn’t prepared to take on my case. Also, if I had a lawyer who thought it was more important to thugify the person I’m charged with murdering rather than ALREADY getting experts lined up in ballistics and forensics, I would think he is not experienced in criminal defense.

IMO, what O’Mara and West are doing is trying to divert the murder 2 case into some other type of case that does not defend GZ at all but rather, makes excuses for him.”

This is my response:

When I worked on the Green River Killer case in Seattle (we had a team of 8 lawyers, 5 investigators, 20 experts and and numerous support staff), we hired a software firm to code over a million pages of discovery stored in an airplane hanger that the prosecution converted into electronic images using scanners. They also imaged over a million exhibits.

An electronic database filled with millions of images is worthless, unless you can search the database and find the information you need. In effect, you need to develop a cover sheet for each document or exhibit in the database and enter information on that cover sheet that tags the document or exhibit with search terms that you will subsequently use to find the cover sheet and its attached document. The process of tagging each document or exhibit is called coding the discovery.

The firm that we retained, hired a team of 36 lawyers who, for one reason or another were not practicing law. Retired, semi-retired and women on maternity leave made up the team. We provided the search terms and they tagged the documents and exhibits. The job took six months to complete.

The firm provided the software program we used to search that immense database. The whole case and the program to search it was stored on a server at their office. We accessed it through a secure internet-tunnel connection. They also provided a secure email program that we used to communicate with each other regarding the case.

My primary responsibilities were DNA and forensics. I also played a major role in developing our coding system.

Although our setup was likely substantially more sophisticated than whatever setup West, O’Mara and their 6 interns are using, I think they are doing something similar to what we did, but on a much smaller scale. The process is expensive, but necessary in big paper-intensive cases.

I question whether all of that high-tech stuff is really necessary in Trayvon’s case, but I understand why they would have decided to modernize the discovery-organization process by converting everything into an electronic searchable database of images. I would too, if I had the money.

O’Mara seems to be wasting an enormous amount of time running his mouth to the media and trying his case in the court of public opinion. He appears to be obsessively preoccupied with a racist right-wing-inspired snipe hunt for evidence of non-existing bad acts committed by Trayvon and his girlfriend, Dee Dee. Seems like almost everyday there is a new nonsensical rumor coming out of tree-house gang that winds him up tight and keeps him going and going like the Eveready Bunny.

I have no doubt that the snipe hunt is a waste of time and energy because the evidence he is searching for exists only in the fevered imaginations of creepy people like the client, the client’s family and their frantic supporters. They seem not to realize that each new phantasmagorical rumor is a distraction rather than an aid. Meanwhile, O’Mara seems oblivious to how stupid he looks when each new rumor fails to pan out.

He has had more than 6 months to find out if Trayvon Martin was an aggressive martial artist who liked to beat the crap out of other people for no apparent reason while uttering outdated ghetto slang from 20-year-old movies.

I keep asking myself when will he finally tire of playing the role of a subservient dog being wagged by its tail?

I am going to repeat something that I said in a comment yesterday:

“I think O’Mara is attempting to cut his losses and get out of this thing gracefully without screaming and running as fast as he can toward the exits with his hair on fire.

At this point, I think it would make more sense to close the account to prevent more people from basically being defrauded by having their money pay for unnecessary security and create fertilizer via the defendant’s alimentary canal instead of paying for needed defense services.

Yes, settle up with AIS, close the account, enter the IFP Order, let O’Mara and West out with an admonishment to run a few laps on the beads and go forth and sin no more, and appoint new counsel at public expense. Then set a new hearing in a week or two for confirmation of new counsel.

If the defendant demands security, send him to jail. He will be safe there. That should stop his complaining.

If he objects to the GPS device on the ground that he cannot afford it, revoke his bond and take him into custody. That should stop his complaining.”


No Credible Threat to the Defendant’s Life or Safety Exists in Trayvon Martin murder case

December 26, 2012

Good morning and happy holidays to all of you.

I love blogging but it has developed into an obligation that leaves little time for me to do or think about anything else. My inattention to other responsibilities in my life reached a crisis about a week ago that forced me to suspend operations here. I am pleased to report that I can now return to blogging and I apologize for any inconvenience that my absence may have caused.

I believe interacting with all of you is the most important thing I do. That requires constant monitoring and response to your comments in addition to all of the time and effort that I expend producing new articles. This blog has developed from a hobby into a new career and I am grateful to all of you for participating in and supporting it. You have enriched my life and I hope that I have enriched yours in return.

Right now I am struggling with the time commitment and I sometimes refer to myself in conversations with others as a “prisoner of the blog.” I am obviously going to have to improve my time management skills because taking time off to put out fires is not a responsible or effective solution. Please bear with me as I adjust to the increasing demand for my time and attention.

Meanwhile, back in the jungle, I noticed a little story about a lawsuit filed in the Orange County Circuit Court last Friday against he-whose-name-shall-be-forgotten. The plaintiff is Associated Investigative Services, the company that has provided bodyguards for the defendant in the Trayvon Martin murder case. The company claims that he owes $27,000 for services provided. Presumably, those services were suspended some time ago for nonpayment. Termination of services is an extreme creditor’s remedy that typically is reserved for situations where no payments have been received for multiple billing periods and no agreement has been reached regarding when, if ever, payment will be made.

Mark O’Mara expressed “surprise” about the lawsuit. He said the company has been paid $40,000. Of course, that does not mean that the company is not owed an additional $27,000. Reading between the lines, I interpret his response as a tacit admission that his client owes money to the company.

According to the article that I read, the company was hired to provide security for the Zimmerman family in June and stopped receiving payments “after an independent trustee took over Zimmerman’s defense fund.”

In addition to the defendant, Mark O’Mara and Shellie Zimmerman are named as defendants in the lawsuit.

This lawsuit confirms my suspicion that contributions to the defense fund have stopped or slowed to a trickle and it also supports my argument that no credible threat to the defendant’s life or safety exists or ever has existed and the security firm was hired for the sake of appearances only in order to fool the court and the public into believing there was a credible threat.

I continue to be amazed that anyone believes this defendant and his lawyer.

Propaganda is not a defense to murder and sooner or later the defense is going to have to stop the bullshit and deal with the evidence.


Zimmerman: The Targeted Use of Propaganda to Influence Prospective Jurors Before Trial Should be Prohibited

November 2, 2012

I write today to reemphasize my concern about Mark O’Mara’s efforts to try the Zimmerman case in the court of public opinion, instead of the courtroom. I also write to issue a warning to every person in this country who believes as I do, that We the People not only require a fair and impartial method by which we resolve our disagreements, we also need to believe that the method we use produces fair and just results. Any method of dispute resolution that does not satisfy both requirements will bleed legitimacy and ultimately fail. While there may not be any way to predict with reasonable certainty when an established method of dispute resolution will cross the border and trespass in the land of illegitimacy, I believe every person in this country who is capable of rational thought agrees that we should never venture in the direction of that border, let alone cross it. Is it not self-evident to everyone that both individually and collectively, we are far more likely to obtain a fair and just result if we resolve our disagreements peacefully rather than at the point of a gun?

Would George Zimmerman be facing the potential loss of his liberty for the rest of his life, if he had been more disposed to introduce himself and start a conversation rather than terminate a disagreement with a gunshot to the heart?

Our Founding Fathers understood these basic principles and they created our judicial system, the courts and the Bill of Rights, including the right to due process of law, to honor those principles and give them meaning in our lives.

When Mark O’Mara issues public statements repeating Zimmerman’s claim of self-defense, as though it were true, and he falsely asserts that there is no evidence that contradicts anything George Zimmerman said, he grossly misrepresents the state of the evidence to the public. The truth is quite different because there is a substantial amount of forensic and physical evidence, in addition to numerous inconsistencies, material contradictions, and damaging admissions in Zimmerman’s own statements to the police that cause me to conclude that he is intentionally and repeatedly attempting to deceive the public about George Zimmerman and the state of the evidence against him.

Lawyers refer to this type of statement as an argument and, as anyone who has served on a jury will confirm, arguments are not evidence. In addition, lawyers are ethically to have a good faith basis to support any argument they make and I do not see how O’Mara can truthfully claim that he made those public statements in good faith.

Moreover, when he makes public statements about George Zimmerman and the state of the evidence, no one with sufficient knowledge of George Zimmerman and the evidence against him is present to confront O’Mara with the truth and expose his false statements. George Zimmerman is not even present to speak for himself.

Opposing parties, each represented by counsel, are present in the courtroom when their case goes to trial. Each side can offer evidence for the jury to consider and the judge will admit or reject it, subject to the rules of evidence.

One of the most important rules of evidence is the hearsay rule and it prohibits the defense from introducing any statement Zimmerman made to the police, if the defense offers the statement to prove the truth of the matter asserted in the statement. This rule prohibits the defense at trial from referring to or introducing any of Zimmerman’s statements to prove what he asserted in those statements. The effect of this rule would force Zimmerman to testify and be subject to cross examination by the prosecution.

When O’Mara issues a public statement about what happened to George Zimmerman during his encounter with Trayvon Martin, he is repeating what George Zimmerman said about that encounter in an effort to convince members of the public that George Zimmerman’s description of that encounter is true. He can continue to do that without limitation, without George Zimmerman present and without fear that anyone will challenge anything he says. In effect, he presents himself as someone who knows what happened and by doing this repeatedly during the run-up to the trial, now scheduled for June 10, 2013, he no doubt hopes to use the media to deliver his message and convince as many people as possible that George Zimmerman killed Trayvon Martin in self-defense. Of course, his target audience is every person who might serve as a juror in the case and he wants them to report for jury service having already decided that George Zimmerman is innocent before the trial starts.

I have used the absence of the hearsay rule and the right to confront witnesses by cross examination as examples to identify the unsuitability of the media as a process for determining the truth about any matter. To be blunt, I believe O’Mara is deliberately using propaganda to win the hearts and minds of all of the prospective jurors before the trial starts.

To properly assess the nature and extent of the threat that O’Mara’s use of propaganda poses to the integrity of the truth-finding process that we expect of any trial, we also have to consider that only the defendant can request a change of venue. He does not intend to make that request or he would have done so.

Judge Nelson apparently believes that the jury selection process can adequately identify and eliminate any prospective juror who has already decided that George Zimmerman is guilty or innocent. I do not agree because she assumes all prospective jurors who have made up their minds will disclose that during voir dire and I do not believe that is true, given my experience.

She also assumes that there always will be a significant number of prospective jurors who know nothing about the case. Even if she is right, I do not believe we would be wise to restrict jury participation to only those people who do not know anything about major stories in the news regarding events that happened in their communities.

I think the targeted use of propaganda to influence prospective jurors constitutes a significant threat to the integrity of our judicial system in all cases, as well as the Zimmerman case, and I believe judges should regard it seriously.

Before last Friday’s hearing, I recommended Judge Nelson deny the State’s motion for a gag order and I have not changed my mind. There are other less drastic potential remedies available, such as issuing warnings and using the contempt power to punish willful violators.

Last but not least, I also am troubled by the amount of victim demonization that comes out of the pro Zimmerman camp. I have not seen any evidence at all that supports the accusations of misconduct. The effort to demonize Trayvon Martin’s character appears to be inseparable from the effort to present George Zimmerman as the victim in this case.

Both efforts are propaganda and both should be regarded as serious threats to a fair and just resolution of this case.


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