Zimmerman Did Not Shoot Trayvon Martin In Self-Defense: UPDATED

March 30, 2012

George Zimmerman claims that he shot and killed Trayvon Martin in self-defense to prevent Martin from seriously injuring or killing him. According to news reports, Martin punched him in the nose fracturing it and was slamming the back of his head against a sidewalk when he shot him. The police and the prosecutor’s office agreed that he killed Martin in self-defense because the police released him after interviewing him about the circumstances of the shooting and the prosecution did not seek a grand jury indictment charging him with a crime.

Let’s take a look at Florida’s stand-your-ground self-defense statute to determine whether we agree or disagree with their decision.

The stand-your-ground law in Florida simply means that a person has no duty to retreat before using deadly force in self-defense.

The Florida statute provides:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;

(Emphasis supplied)

Florida Statute 776.013(3) adds two important conditions; namely, the person who uses deadly force must not be engaged in unlawful activity and must have a right to be where they are.

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(Emphasis supplied)

More importantly, pursuant to Florida statute 776.041(2), the person who uses deadly force cannot claim self-defense if he is the aggressor, unless,

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

(Emphasis supplied)

Zimmerman was not a law enforcement officer and we know from his 911 call that he ignored the 911 dispatcher’s admonition not to follow the “suspicious person” whom he called about. We also know that nothing Zimmerman said about the “suspicious person” was reasonably suspicious. That is, the facts and circumstances that he described (i.e., walking down the sidewalk while Black and wearing a hoodie) would not cause a reasonable person to suspect that Martin was committing a crime.

Nevertheless, Zimmerman initiated contact with Martin and apparently attempted to detain him without waiting for police to arrive. Since Zimmerman was not a police officer, he had no right to detain Martin and Martin was free to leave without identifying himself or answering any questions. Zimmerman would be considered an aggressor under Florida law, if he used or attempted to use any force to prevent Martin from walking away.

Also, under Florida statute 776.012, Martin could have stood his ground and would have been entitled to use force, but not deadly force, in self-defense to prevent Zimmerman from assaulting him. He would have been entitled to use deadly force in self-defense under 776.013(3), if Zimmerman were attempting to inflict serious bodily harm or kill him.

This case does not appear to be complicated to analyze. Zimmerman ignored the 911 dispatcher’s advice and, according to his own version of what happened, he attempted to detain Martin without a reasonable suspicion to believe Martin was committing a crime or lawful authority to detain him. Therefore, Zimmerman was the aggressor and Martin was entitled to stand his ground and use force to prevent Zimmerman from assaulting him, including using deadly force, if necessary.

We do not actually know if Martin used any force because the police videotape of Zimmerman arriving at the police station does not support Zimmerman’s claim that he sustained a broken nose and abrasions to the back of his head. But even if Zimmerman did sustain those injuries, (1) he was the aggressor, (2) Martin was entitled to use force in self-defense, (3) and Zimmerman’s claim of self-defense is barred by the statute.

At this point, racism and corruption appear to be the most likely explanation for the failure to arrest and prosecute George Zimmerman for intentionally killing Trayvon Martin.

UPDATE:

Two independent voice analysis experts using different analytical methods have compared George Zimmerman’s voice from his 911 call to screams and a gunshot that are audible in the background during a 911 call from a neighbor calling for police assistance regarding the confrontation between George Zimmerman and Trayvon Martin that was going on behind her house.

Both experts have excluded George Zimmerman as the source of those screams to a reasonable scientific certainty.

CAUTION: The recording may cause emotional upset.

In addition, EMS documents obtained by the New York Daily News do not support Zimmerman’s claim that he sustained physical injuries during his confrontation with Trayvon Martin.

Based on George Zimmerman’s declared intention during his 911 call to follow Trayvon Martin, ignoring the 911 operator’s warning not to do so, and what now appear to be Trayvon Martin’s screams, I think we can reasonably conclude that George Zimmerman, who was armed and fired the fatal shot, confronted Trayvon Martin and was the aggressor.

Zimmerman’s claim that Martin, who was unarmed, was the aggressor breaking his nose and slamming the back of his head into a cement sidewalk, is not supported by the evidence.

Therefore, Zimmerman’s claim of self-defense should be rejected and he should be charged with intentional murder.


Disturbing Questions About The Civilian Massacre In Afghanistan: UPDATE

March 21, 2012
Afghanistan Boy (photo: UN Photos/flickr)

Afghanistan Boy (photo: UN Photos/flickr)

Jason Ditz at Antiwar.com has a report this morning linking to an AP article in The Australian that U.S. soldiers lined up against a wall all of the adult males in the village of Mokhoyan after an IED blew up a tank injuring American soldiers at a location near the village.

According to the report, the villagers said the Americans told them they knew they were responsible for the IED and they were going to kill at least 20 villagers, including children, to avenge the attack.

According to the villagers, the incident occurred on March 8th. Mokhoyan is in the vicinity of the two villages (Balandi and Alkozai) where Staff Sergeant Robert Bales allegedly murdered 16 civilians, including 9 children, setting some of the bodies on fire during the predawn hours of March 11th.

Jason Ditz also reports today that Bales’s attorney, John Henry Browne, said his client has no memory of the incident and he denies drinking more than a sip or two alcohol that night.

Mr. Browne also said that Bales told him that a friend lost a leg in an IED explosion while on a patrol on March 9th.

The U.S. military has neither confirmed nor denied that the IED explosion reported by the villagers of Mokhoyan is the same incident that Staff Sergeant Bales mentioned to his attorney.

The villagers in Balandi and Alkozai claim that a group of U.S. soldiers committed the murders. The military insists that Staff Sergeant Bales was the only soldier involved.

Appears that the bodies may have been buried before autopsies could be performed to determine specific facts, such as,

(1) the time of death for each victim;

(2) whether more than weapon was involved;

(3) whether the fatal shot or shots were fired from close range;

(4) what was the trajectory of bullet or bullets;

(5) whether there were any exit wounds;

(6) whether there was any evidence (i.e., ligature marks) that the bodies were bound (e.g., wrists tied behind the back);

(7) whether there were any puncture or slashing type wounds consistent with the use of a sharp piercing or cutting instrument like a knife; and

(8) whether there was any evidence of physical torture prior to death.

We also do not know if the houses in which the murders took place were investigated as crime scenes. For example, were any slugs and casings recovered and, if so, how many weapons and what type were involved. Another question I have is whether any bloody fingerprints or footprints were found. Read the rest of this entry »


Brother Or Sister, Can You Spare 30 days?

March 20, 2012

(h/t to Crane-Station for recommending this short film by Joshua Weigel, who also directed the Butterfly Circus)

I remember reading about a person who voluntarily decided to experience visual blindness for 30 days. He cut a ping-pong ball in half, manufactured a pair of goggles, and wore them for the entire month.

That gave me an idea.

Why not do the same for a set of beliefs and witness how your personality and behavior change?

For example, I decided to assume that my spirit is immortal and voluntarily experiencing a finite existence in the physical dimension of space-time by inhabiting a form that consists of a physical body that comes with a mind and ego/personality.

I intentionally disconnected my sense of self from my mind and ego/personality and attached it to my spirit/soul.

Why not taste immortality?

Come on, don’t be afraid.

Give it a try.

What have you got to lose?

Except your fear of death, for starters.


Hey Panetta! Gimme an F . . .

March 16, 2012

Country Joe McDonald at Woodstock singin’ that Fixin’ to Die Rag. “Gimme an F . . .”

A curious event happened in Afghanistan yesterday. Actually, a lot of curious events happened, but I want to focus on two of them that grabbed my attention.

As y’all know, Secretary of Defense Leon Panetta jetted to Afghanistan to attempt to put out the firestorm caused by the as yet unnamed U.S. soldier who slaughtered 16 Afghan civilians, 9 of them children, as they slept in their beds.

He made a bunch of bullshit speeches about staying the course; he shook a bunch of hands; and smiled a bunch of smiles. But he seemed, well, kind of off. Scared maybe. At least that was my take on it.

Might have had to do with something that happened just before he arrived at the base airport in Helmand province. An Afghan civilian commandeered a vehicle and attempted to run over a bunch of the brass welcoming committee standing out on the tarmac waiting for Panetta’s plane to pull in after it landed. They saw him coming and scattered avoiding injury. The guy stopped the vehicle and set a bunch of gas cans and himself on fire.

Poof!

Not even the most skilled torturers at the base could get anything out of him.

So, Panetta gets off the plane and they stand around scratching their heads exchanging wtf-wow-did-you-see-that type remarks and it’s on to a big inflated-type tent somewhere on the base where Panetta is scheduled to speak to a bunch of Marines, except . . .

The patiently waiting Marines are ordered to leave the tent and disarm, piling all of their M4s, M16s, 9 mm handguns, ammo, knives, and assorted other weapons on the ground outside the tent, notwithstanding the rule that Marines in a war zone are never supposed to be unarmed.

After they come back scratching their heads wondering wtf and resume their seats, Panetta comes out and tells them everything is copacetic; we’re winning the war; and all we need to do is stay-the-course.

And poof! Off he goes to his next venue.

Now, I was never in the Marine Corps and never served in the military, so maybe I don’t know what I’m talking about, but I would have been furious, if I were one of those Marines. What kind of message was that?

“Y’all are a bunch of fucking crazy psycho killers and I don’t feel safe around you.”

That’s not the way to treat a Marine.

Was it possible for the United States Secretary of Defense to have done anything more stupid and disrespectful?

Wow! Just wow!

I’m not buying the ‘official’ explanation that the Marines were ordered to disarm so that the disarmed Afghan National Army troops who also were present wouldn’t feel singled out.

Why don’t I believe it?

Because it’s still an insult and I would prefer armed Marines to unarmed Marines when I was in the presence of supposedly unarmed Afghan National Army soldiers.

I mean, what if one of them had one of those liquid bombs we’re all supposed to be terrified about, or a bare bodkin like Hamlet hallucinated about.

Any way you cut it, disarming the Marines was the equivalent of saying, “I fear for my life and I don’t trust you.”

So, now that we know the Marines and probably the rest of our troops in Afghanistan, if not all of the armed services, think Panetta is a coward who does not respect and trust them, I’m sure as shootin’ fish in a barrel that they are thrilled as all get-out to continue to risk their lives every time they go out on patrol with their oh-so-loyal Afghan partners.

Maybe I’m reading too much into this, but I doubt it. I think troop discipline, which is already unraveling, will really start to fly apart now like it did in Vietnam when soldiers started fraggin’ their platoon leaders.

The only reasons we aren’t going to get out are:

1. Obama will not withdraw before the election because he’s afraid the right wing will jump on him and he’ll lose the election;

2. The generals don’t want to get tagged with losing the war;

3. Win or lose, war is big business.

4. Heroin is big business.

Therefore, the body count will continue to mount.

As Country Joe McDonald said, “Whoopee, we’re all gonna die.”

Here’s a link to an article about the incident.


Mitigation Investigation And Jury Sentencing In Death Penalty Cases

March 14, 2012

Ahem, and now back to our regularly scheduled program. That would be the law, in case you are keeping score. This article should be read in conjunction with my earlier article, Does A Seven-Year-Wait-Behind-Bars Violate The Sixth-Amendment Right To A Speedy Trial?

I practiced law in the State of Washington where a judge imposes the sentence in all criminal cases, except death penalty cases. In most cases, the sentencing occurs approximately 6 weeks after the defendant pleads guilty or is found guilty by a jury. During the 6-week period, the Probation Office prepares a presentence report for the sentencing judge and the defense prepares for the sentencing by conducting a mini-mitigation investigation and arranging to have a defense expert evaluate the client, if there is a possible mental illness or impaired functioning issue due to an underlying alcohol, drug, or sexual deviance problem.

Federal court works the same way.

Death penalty cases are different because the jury that heard the evidence and convicted the defendant also sentences the defendant. Jury sentencing, in other words.

In death penalty cases, the courts proceed to sentencing within a day or two after receiving the guilty verdict, rather than recess the trial for six weeks pending the sentencing hearing. Therefore, the mitigation investigation must take place before the trial starts, which is putting the cart before the horse since a mitigation investigation must necessarily proceed from the assumption that the client is guilty.

Picture this: Very few people can afford to retain counsel in a death penalty case. Therefore, almost all death penalty lawyers are private counsel appointed by the court and paid at public expense, or they are public defenders. With few exceptions, clients charged with a death penalty offense figure that a court appointed lawyer or public defender is not a ‘real’ lawyer. Clients typically presume the lawyer is really working for the prosecutor and does not give a damn about them or their case.

Okay, let me now introduce you to Mr. Hyde. He is charged with 5 rape-murders and the prosecution is seeking the death penalty. He claims he is innocent and he is convinced that you are lower than pond-scum, unfit to sleep with the dogs, and you are going to sell him out. Greet him with your brightest smile and explain that you need some information from him to get your mitigation investigator started.

And, for God’s sake, don’t forget to duck.

Now that you understand the importance of delay . . .

Judges are concerned that it would be practically impossible to reassemble the jury following a long break after it returns a guilty verdict in a death case and they are not going to sequester jurors for six weeks with nothing to do in order to prevent them from seeing or reading anything about the case and to assure that they show-up for the sentencing hearing. That would be too expensive and impossible to police. They know that most jurors want to get on with their lives and would resent and be distracted while facing a decision to sentence a defendant to death or life without parole. Some jurors might even run away to avoid making the decision or sicken and die from stress-related causes. Sending the police out to find missing jurors would waste time and divert overstretched resources. In addition, judges know that proceeding with less than 12 jurors would raise issues about whether the defendant’s right to trial by jury was compromised. Meanwhile, retaining alternate jurors for the duration of the trial and a 6-week continuance for a sentencing hearing is impractical.

Prosecutors like to shorten the break ‘to strike while the iron is hot,’ so to speak. That is, while the jurors are still emotionally affected by the horror of the crime and more likely to vote for the death penalty. Theoretically, however, death-penalty verdicts should not be vengeance based, right? How is that for an understatement?

Defense counsel always want to lengthen the break as much as possible hoping that the delay will cool tempers and increase the possibility that the jury will return a verdict of life without parole. The more extreme members of our select fraternity and sorority of life savers, would prefer the sentencing hearing be continued for ten or more years, if not indefinitely. I include myself in that select category, just so you know where I am coming from.

In reality, we are lucky if we get more than 48 hours before we have to face a stern and hostile jury. You do not know what constitutes a tough sell until you try to convince a jury to spare your client’s life.

Death penalty trials take a long time. In the cases that I tried, for example, jury selection averaged 3 weeks (attorney conducted voir dire of prospective jurors individually out of the presence of the other prospective jurors) and the evidentiary portion of the guilt phase lasted from 6 weeks (my shortest) to 9 months (my longest).

In practice, because the client’s life is at stake, the mitigation investigation in a death-penalty case is far more extensive and intensive compared to the ordinary case.

I say ‘ordinary’ because there is no comparison to the intensity of a death penalty trial.

Mitigation investigation begins with collecting all available documents concerning your client, starting with medical reports regarding the mother’s pregnancy and your client’s birth. Then we want all medical, school, military, employment, and institutional records concerning the client.

After assembling all available records, we identify, locate, and interview every living person who had a significant relationship with the client and every person for whom he performed a favor or did something nice that he did not have to do.

We are looking for evidence of what we call “a hole in the head.” That is, evidence of an organic brain disorder or injury that impaired functioning and might have caused or contributed to the commission of the crime or crimes with which the client is charged.

We are also looking for evidence that the client might have been abused sexually, psychologically, or physically as a child. As you might well imagine, clients and families often would rather die than open up and talk about that sort of deeply personal, embarrassing, and humiliating information to strangers. We often find that they so deeply suppress or spin memories of abuse to excuse the abuser that it practically takes a miracle to break through the denial and get at the truth. And we have to dig for that information without planting false memories.

We search until we find something.

Why?

Because we honor and never judge our clients, no matter what they have done in their lives, and we do everything possible within the boundaries of the law to save their lives.

We call it God’s work.

And most of the time the money we are paid for doing this work does not even cover our monthly overhead.


For Your Listening Pleasure: Old Crow Medicine Show

March 13, 2012

I love this band! If you have not heard them, watch these three videos. If you have heard of them, watch them anyway. They are really really good.

First up: I Hear Them All

Second: Caroline

Third: Wagon Wheel

How ’bout an encore?

Here they are appearing as special guests of Gillian Welch and David Rawlings at St. Lukes in London performing The Weight, by the Band.

We need great music to get us through these troubled times.


Shadow and Enlightenment

March 13, 2012

Each one of us has a shadow.

The shadow is that part of the internal world of our consciousness we seek to hide from ourselves and others by pretending that it does not exist.

When we do that, it confronts us in the external world that we call reality.

This happens via projection of our internal consciousness as if onto a mirror, which is what we experience as our external reality.

Wetiko is a Native American word for something difficult to describe, a non-local mind parasite, or aspect of consciousness that not only imagines itself to be sighted, but imagines itself to be able to see better than anyone else. No one is immune and everyone has it.

Wetigo lives in the shadow and manifests in each person in an individual way.

Wetiko seizes you when you least expect it and when you have it, you do not recognize it as it slowly eats and kills your soul much like a tapeworm consumes vitality and eventually kills its host.

Look a Barack Obama. To you, as he is to each of us, he is a projection of what we hate about ourselves and fear to confront.

He is what he is and refuses to listen, but do not demonize and condemn him or Wetigo will just as surely consume you.

Enlightenment consists of becoming conscious of the shadow within by illuminating and observing it objectively from a detached perspective. Study it closely, my friend, and know its soft and barely whispered touch.

Wetigo is your addiction and conceals itself in your shadow like a cockroach.

Wetigo will consume your immortal soul, if you let it.

You cannot kill it without killing yourself, but you can speak its name and disempower it.

Use love and compassion to keep it at bay.

Illuminate your way to enlightenment by neutralizing Wetigo.

This is how you will transform the world, which is but a projection of your dream.

(h/t to Maddy @Firedoglake who inspired me to write this with her comment @97 on a recent post by Wendy Davis and the link she provided to a redicecreations interview of Paul Levy)


Enough!

March 12, 2012

On March 1st, Tom Engelhardt (TomDispatch) published an interview at MyFDL on Firedoglake of journalist Jonathan Schell by Andy Kroll. Nonviolent revolution was the subject matter of the interview. The article passed off the conveyor belt without comment, which I find remarkable. I do not believe it even made the recommended list, let alone being front-paged at MyFDL.

You can read the article here.

During the interview, Schell reviewed successful revolutions that defeated and in some cases toppled empires and totalitarian governments. In each case, beginning with our war for independence against Great Britain, he described how the outcome was assured by first winning the hearts and minds of the people through a variety of nonviolent means, including the power of the pen and nonviolent public demonstrations against authority. In many cases, for example the French Revolution and the Bolshevik Revolution, the majority of the violence and killing happened during the scramble for power after the governments fell.

JS: . . . Usually the cliché is that the stage of overthrow is the violent part, and the stage of consolidation or of setting up a new government is post-violent or nonviolent. I discovered it to be just the other way around.

AK: On this subject, as your book makes clear, some re-teaching is in order. We’re so conditioned to think of overthrow as a physical act: knocking down the gates, storming the castle, killing the king, declaring the country yours.

JS: In a certain sense, overthrow is the wrong word. If you overthrow something, you pick it up and smash it down. In these cases, however, the government has lost legitimacy with the people and is spontaneously disintegrating from within.

AK: As you note [in your book, The Unconquerable World], the Hungarian writer György Konrád used the image of an iceberg melting from the inside to describe the process.

JS: He and actually the whole Solidarity movement had already noticed how Franco’s cryptofascist regime in Spain sort of melted away from within and finally handed over power in a formal process to democratic forces. That was one of their models.

Schell’s point is that in order to win a revolution, one must first win the hearts and minds of the people and one cannot accomplish that task at the point of a gun. He calls Ghandi the Einstein of Revolution because Ghandi was the first person to realize and intentionally use nonviolence as a strategy to bring down an empire. Ghandi used that tactic, in effect paralyzing the British, on September 11, 1906, at The Empire Theater in Johannesberg, South Africa. Here is Ben Kingsley as Ghandi recreating one of the greatest moments in people power and the history of revolution.

Spring is the time for new beginnings.

The American Empire is rotten to the core and cannot be saved.

Revolution is an idea whose time has come

Spread it

Demonstrate

And melt it from within.


Does A Seven-Year-Wait Behind Bars Violate The Sixth Amendment Right To A Speedy Trial?

March 9, 2012

What were you doing in March, 2005?

On February 27, the Georgia Supreme Court denied Khanhn Dinh Phan’s request to dismiss the death penalty case pending against him. Such an order under ordinary circumstances would not merit comment, but these are not ordinary circumstances. Khanh Dinh Phan has been locked up in the Gwinnett County Jail in Georgia for seven years without a trial.

In addition to rejecting his argument that the State of Georgia has violated his Sixth Amendment right to a speedy trial (See: Barker v. Wingo, 407 U.S. 514 (1972); Strunk v. U.S., 412 U.S. 434 (1973)), the Court removed his court-appointed counsel and appointed new counsel over his objections, even though his lawyers did not cause the delay in bringing him to trial and did nothing wrong. In fact, they did what they were required to do and what I would have done if I had been representing Mr. Phan in order to provide him with effective assistance of counsel, which is what the Sixth Amendment requires (See Gideon v. Wainwright, 372 U.S. 335 (1963); Strickland v. Washington, 466 U.S. 668 (1984)).

The Facts

Mr. Phan is charged with intentionally killing Hung Thai and his two-year-old son by shooting them in the head execution-style, allegedly as punishment for Hung Thai’s failure to pay a gambling debt. Mr. Thai’s wife, Hoangganh Ta, was also shot in the head, but she survived and returned to live in Vietnam after emerging from a coma seven months after the shooting. She has identified Mr. Phan as the shooter and she also provided law enforcement with information regarding the alleged motive.

The trial court appointed two lawyers to represent Mr. Phan, which is standard operating procedure in a death penalty case. The two lawyers were Chris Adams, who was the Director of the Georgia Capital Defender’s Office at that time, and Bruce Harvey, a lawyer in private practice.

The Pretrial and Mitigation Investigation

Adams and Harvey did what any qualified and experienced death-penalty lawyers would have done in this case. After establishing a relationship of confidence and trust with their indigent client, they asked the trial court to authorize the expenditure of reasonable funds to travel with an investigator to Vietnam to interview Hoangganh Ta about the homicides and to interview members of Mr. Phan’s family, friends, and others who knew him in Vietnam such as neighbors, teachers, employers, counselors, and doctors who might have provided him with medical treatment. The former is routine pretrial investigation that should be conducted in any case and the latter, which we call mitigation investigation, is required in all capital cases so that no stone is left unturned in the effort to discover evidence about the defendant, or the circumstances of the crime, that might in fairness or mercy potentially cause a juror to vote for a sentence of less than death (See Porter v. McCollum, 130 S.Ct. 447 (2009)).

The mitigation investigation must be conducted prior to trial, which is necessarily before the defendant has been acquitted or convicted, because, if the defendant is convicted, the case would proceed to a sentencing phase immediately after the jury returned the guilty verdict, or within a few days, not allowing sufficient time to conduct the investigation. Clients rarely understand the necessity to pry deeply into their past history and relationships searching for clues to explain seemingly unexplainable homicidal behavior that they are adamantly denying. They regard the investigation as a form of rape and it is very difficult for the lawyers to establish a relationship of trust and confidence when the client wants to hear the lawyer say, “I believe you when you say you are innocent and I will do everything that I possibly can to win this case.”

This tension explains why a death-penalty case is much easier to handle, if the client admits guilt. Most clients, however, deny guilt inevitably generating conflict in the attorney-client relationship over the necessity for and wide ranging scope of the mitigation evidence. From the results of post-conviction DNA testing and reinvestigation, we now know for certain that a significant percentage of death-penalty defendants are innocent (approximately 20%). The attorney-client conflict generated by the mitigation investigation is an additional, but no less valid reason to abolish the death penalty.

In this case, Mr. Phan’s lawyers appear to have navigated successfully through the minefield.

Gwinnett County Cannot Afford To Pay For What The Law Requires

Mr. Phan’s case went off the rails when Gwinnett County could not afford to pay for the trip to Vietnam. Defense counsel could not agree to forego the necessary trip and they could not reasonably or legally be expected to finance the trip themselves.

Contrary to long established United State Supreme Court precedent, Gwinnett County also refused to pay for a defense expert regarding the effect of gunshot injuries to the brain on memory (Cf Ake v. Oklahoma, 470 U.S. 68 (1985)).

Since defense counsel could not adequately prepare for trial, the trial could not go forward. And so, Mr. Phan languished and continues to languish in jail waiting for his day in court, a day that may never come.

The Georgia Supreme Court’s Decision

Notwithstanding the passage of seven years without a trial, due to the trial court’s failure to pay for reasonably necessary defense costs to prepare for trial that it is required to compensate (Cf, Ake v. Oklahoma, 470 U.S. 68 (1985) and its progeny), the Georgia Supreme Court not only refused to dismiss the case for violation of Mr. Phan’s right to a speedy trial, it aggravated the situation by dismissing his lawyers replacing them with public defenders who will cost less because they are already paid a salary, regardless of how many hours they work, rather than an hourly wage.

Rather than requiring the Gwinnett County Circuit Court to pay the necessary and reasonable expenses for counsel to defend Mr. Phan, an obligation imposed by long-standing United States Supreme Court precedent, the Georgia Supreme Court fashioned a ‘solution’ to save money by destroying an existing attorney-client relationship by appointing new lawyers. Presumably, the Court believes that the financial savings can free-up sufficient funds to pay for the reasonably necessary expenses that must be paid for the trial to go forward.

Whether and when that will happen is anybody’s guess.

Conclusion

The prosecuting attorney in Gwinnett County should not be seeking the death penalty in a case when the circuit court cannot afford to pay for the reasonably necessary expenses to defend the case.

Ultimately, of course, it is the State of Georgia’s responsibility to budget and pay for the reasonable and necessary expenses that the county circuit courts must pay to fund indigent defense. Death penalty cases are expensive and, if Georgia wants to kill people, then Georgia must bear the cost of prosecuting, defending, and killing them.

Savaging and scavenging a successful seven-year attorney-client relationship to free-up money to pay for reasonably necessary defense expenses is a willful and intentional destruction of Mr. Phan’s right to counsel and a gross denial of his right to a speedy trial — all of which has been done to fund a robbing-Peter-to-pay-Paul scheme.

The Georgia Supreme Court’s decision is little more than a variation of the Ponzi Scheme. That it would employ such a tactic to kill someone speaks volumes as to its regard for the United States Constitution, the Sixth Amendment, and the Rule of Law.

If the right to a speedy trial means anything, it means that no one should be forced to rot in jail for seven years without going to trial. After all this time, he is no closer to trial than he was after he was arrested in 2005.

Shameful and disgusting.

For additional information, see John Rudolph’s article at the Huffington Post.


Obama’s Vile Assassination Doctrine

March 7, 2012

President Obama’s assassination doctrine is a blatant violation of the Fifth Amendment and an insult to everyone who believes in due process of law, the rule of law, and the Constitution. No one is above the law, especially the President. That he would think and proclaim otherwise, says volumes about his arrogance and ignorance.

Attorney General Eric Holder delivered a speech at the Northwestern University School of Law purporting to justify the assassination doctrine as an acceptable form of non-judicial process that has never been reviewed, much less approved, by a court of law. Worse, the administration refuses to share and discuss the legal memorandum upon which Mr. Holder and Mr. Obama rely in claiming the assassination power.

As with everything else in this secretive administration, we are supposed to shut-up and trust them. I refuse to do so.

Support for the death penalty in this country has declined substantially due to the hundreds of innocent people wrongfully convicted and sentenced to death. Why would anyone think that the President should be trusted to get it right when he targets someone for assassination, if our criminal justice system and its vaunted trial by jury so often gets it wrong? What is to stop a president from targeting a political rival or a Reverend Martin Luther King, Jr. for assassination?

Nothing. The person is assassinated and we the people are never provided with an explanation. Absent a whistleblower, and we all know how much this president loves and welcomes whistleblowers, we would never know the president ordered the hit, much less why. Indeed, one might reasonably suppose that he or she would be next, if they asked too many questions.

I am truly disgusted and alarmed beyond words by this development. Under no circumstances will I vote for Barack Obama or any other candidate who supports his assassination doctrine.