Rabbi Hillel’s Three Questions: What Did He Mean?

July 31, 2012

I have always been drawn to the deeper questions in life and I spent quite a bit of my life defending clients charged with death penalty offenses and I confronted those questions on a daily basis. I am opposed to the death penalty in all cases.

I believe that, as long as we remain alive, we retain the capacity for redemption, no matter what we have done.

As we tread water waiting for Judge Lester’s decision on Friday regarding the defense motion to disqualify, I have taken the opportunity to establish some guidelines and rules for the site.

To further set the tone for a new way in the blogosphere to learn about law and grow in wisdom together, I decided to provoke some philosophical thought and discussion regarding Rabbi Hillel’s famous three questions.

Rabbi Hillel

Wikipedia states:

Hillel (הלל) (born Babylon traditionally c.110 BCE, died 10 CE[1] in Jerusalem) was a famous Jewish religious leader, one of the most important figures in Jewish history. He is associated with the development of the Mishnah and the Talmud. Renowned within Judaism as a sage and scholar, he was the founder of the House of Hillel school for Tannaïm (Sages of the Mishnah) and the founder of a dynasty of Sages who stood at the head of the Jews living in the land of Israel until roughly the fifth century of the Christian Era.

He is known for many things, including this expression of the Golden Rule:

“That which is hateful to you, do not do to your fellow. That is the whole Torah; the rest is the explanation; go and learn.

The man had a way of cutting through the bullshit and getting to the essence of things.

I do not mention him for any religious purpose. Instead, I mention him as a sage and, specifically, for the following three questions he asked his students.

If I am not for myself, who will be for me?

But if I am only for myself, who am I?

If not now, when?

What are your thoughts?


Welcome to My House

July 31, 2012

I established this site to discuss legal issues of the day using real cases in the news as examples to inform readers about our legal system and the laws that give it form and structure.

I do not want an echo chamber. I want to encourage evidence-based debate in which the ideas expressed stand or fall on their own without regard to whether people like or dislike the person who expressed them.

Readers should feel free to present a hypothesis or theory opening it up to discussion and debate.

I want people to feel safe here, so they will not be afraid to express their ideas. I want to encourage lurkers to participate.

I want people to follow the Golden Rule and treat each other with respect.

Sarcasm and snark are welcome, as is passion and emotion, so long as the purpose of a comment is not to insult or wound another. I do not want people to feel they are in a strait-jacket, however.

We are adults and we should be able to handle criticism. I think we have a general sense of the boundaries of legitimate discussion and debate. If someone strays beyond them, I will warn them. If they persist, I will ban them.

Consider this blog to be an on-line equivalent of a graduate level seminar where people respect each other and feel free to informally express their personalities while refraining from attacking and disparaging others.

A certain amount of decorum is necessary to promote learning and learning is why we gather here.

When in doubt, think before you act and consider the negative expression of the Golden Rule.

Do not do to others what you would not want them to do to you.

From time to time, I will ban someone for violating the warm, welcoming and respectful environment that I seek to establish and promote here.

When I ban someone, I will be doing it with the best interests of our group in mind and, as a professor leading a seminar in graduate school, I will not be soliciting or expecting discussion regarding my motives and the propriety of my decision.

People who seek to derail legitimate discussion for any purpose, including arguing or complaining about decisions to ban others, will be inviting me to ban them.

Discrimination of any kind for any reason is not acceptable.

Racism and sexism are not acceptable.

Threats will not be tolerated.

There is a lot of prejudice in this land against people with brown skin and Muslims and their faith. People are people and we are all together in this adventure we call life.

No one is special because we are all special.

No one is entitled because we are all entitled.

Traffic to this website has increased substantially since I started writing about the Zimmerman case. People are visiting the site from all over the world.

No matter the color of your skin, your gender, sexual preference, the language you speak, the economic class to which you belong, whether you are a believer or not, you are welcome in my house.

Enter and spend some time with us.

Namaste


Zimmerman, Loughner and Holmes: Are they Evil?

July 28, 2012

James Eagan Holmes allegedly killed 12 people and wounded 58 at the midnight opening of the new Batman film at a movie theater in Aurora, CO.

He had recently dropped out of the University of Colorado Medical School where he was enrolled in the Neuroscience doctoral program and we now know that he was a patient of Dr. Lynn Fenton, a psychiatrist and member of the medical school faculty specializing in the causes and treatment schizophrenia. She also is in charge of Student Mental Health Services.

Given his red and orange hair that he had recently dyed, he apparently believed himself to be or he assumed the role of the Joker, Batman’s arch enemy.

The Telegraph reports:

Police have said that he planned the attack meticulously, ordering ammunition and paramilitary supplies over the internet and buying four weapons legally at gun-stores in the Denver area over two months.

He also rigged his apartment with potentially lethal explosive devices that investigators believe were intended to kill police officers when they arrived to search his home.

The Telegraph reports that Holmes claims he does not recall the incident.

He is scheduled to appear in court Monday at which time he will be formally charged.

Colorado is a death penalty state and likely will seek the death penalty.

Like Jared Loughner, who potentially faces the death penalty for killing six people in Tucson, AZ, including U.S. District Court Judge John Roll and a 9-year-old girl, as well as wounding 14 others, including U.S. Representative Gabrielle Giffords, Holmes may not be competent to stand trial.

A person cannot be tried for a crime unless they are competent to stand trial.

To be competent, they must be oriented as to time and place, comprehend the charges against them, appreciate their legal peril, recall the events that caused them to be charged, and be able to communicate with and assist their attorneys to defend them.

According to the Telegraph, Holmes claims that he does not recall the incident. If that is true, he is incompetent to stand trial.

Should he become competent, he probably will assert the insanity defense.

Colorado combines the M’Naughten Rule with the irresistible impulse rule defining legal insanity as follows:

Whether as the result of a mental disease or defect, the defendant is unable to distinguish between right and wrong and conform his conduct to the requirements of law, or if he can distinguish between right and wrong, is he unable to stop himself from committing the crime.

The biggest stumbling block to satisfying the legal test for insanity is establishing that the defendant could not tell right from wrong. Any behavior that indicates an effort to conceal evidence or the crime itself demonstrates that, however delusional and psychotic a person may have been, they still knew they had committed a crime and sought to escape responsibility for it.

Many people use the word evil to describe people like Jared Loughner and James Eaton Holmes and the acts they allegedly committed.

But what constitutes evil?

Does evil exist?

Is evil something dark and satanic that exists somewhere out “there?”

Does it possess people?

If so, how does that happen?

If it does not exist out “there, where does it exist?”

Are people born evil?

How should the criminal justice system deal with evil, or should it ignore it?

Assuming evil exists, does it increase or diminish personal responsibility for committing crimes?

Assuming for the sake of argument that Jared Loughner committed the crimes charged, is he evil?

If convicted, should he be sentenced to death?

Assuming for the sake of argument that James Eaton Holmes committed the crimes charged, is he evil?

If convicted, should he be sentenced to death?

Finally, what about George Zimmerman?

Is he evil?


Open Discussion Regarding Establishing Guidelines and Rules for Users

July 28, 2012

I just banned Terrance Jones from this site after warning him yesterday to stop misrepresenting the evidence and insulting people. He was quite abusive and I have no doubt that his absence is a relief to many of you.

Me too.

Unfortunately, we are likely to encounter more trolls and I want to establish a set of guidelines and rules to refer to in deciding whether to banish someone.

I don’t want a long list of rules, but some sort of guidelines seems reasonable, so I am soliciting suggestions.

Here are a few of mine to start the discussion.

I do not want an echo chamber. I want to encourage evidence-based debate in which the ideas expressed stand or fall on their own without regard to whether people like or dislike the person who expressed them.

I want people to feel safe here, so they will not be afraid to express their ideas.

I want people to follow the Golden Rule and treat each other with respect.

Sarcasm and snark are welcome, as long as it isn’t personal.

Now, let me here from y’all.


Zimmerman: 13 Questions Searching for an Answer

July 25, 2012

The shooter in a self-defense case with an unarmed victim usually claims that he thought the person he killed was armed and reaching for a weapon when he shot and killed him.

GZ has not made that claim with the exception of his first “apology” to TM’s parents in court at the first bail hearing when he said he thought TM might be armed.

I have been wondering why he hasn’t been claiming all along that he thought TM was armed.

As he was sitting in his vehicle, GZ told the dispatcher that TM was reaching into his waistband as TM was approaching him. He said TM walked past the vehicle, broke into a run, and disappeared from GZ’s view. This statement set up the I-thought-he-was-armed defense.

After he shot and killed TM a few minutes later, he patted him down for a weapon, but did not find one.

He did not admit patting him down. Instead, he said TM was lying face down. He mounted him from behind, grabbed his hands, and stretched TM’s arms out to the side in a Y-position to prevent TM, who was still struggling and cursing him at that point, from reaching his (GZ’s) gun lying nearby in the grass.

We know this story is a lie because TM’s hands were underneath his body when the police arrived at the scene. Both of TM’s lungs were collapsed and he could not push any air through his vocal cords to utter a sound, much less speak a word. More important, TM would have lost consciousness and died instantly after the gunshot destroyed his right ventricle and collapsed both lungs.

A witness told the police that she saw the large man straddling the boy, who was lying face down in the grass, and running his hands up and down the boy’s back. Her description sounds like a search for weapons.

These two established facts lead me to believe that GZ thought TM was armed with some sort of weapon when he got out of his vehicle and set off in pursuit of him to prevent this particular “asshole” and “punk” from getting away like all of the others.

Because GZ believed TM was armed, I have a difficult time believing GZ did not pull his gun out of his holster before he spotted TM and approached him.

I surmise that when he realized after the shooting that TM was not armed, he decided not to claim that he believed TM was armed because such a claim would have been inconsistent with the struggle and screaming. That is, if TM were armed, he would have drawn his weapon during the fight. A claim that he believed TM was reaching for his (TM’s) weapon and he (GZ) killed him to prevent TM from killing him would not withstand scrutiny.

GZ only had a minute or two to scramble together a story to tell the police before they arrived. I think he decided to reject the I-thought-he-was-armed defense, since TM did not have a weapon, and he decided instead to go with the-psycho-Black-gangsta-Mofo-jumped-and-attempted-to-kill-me-with-his-bare-hands defense because he (GZ) had some bleeding injuries from his struggle with TM. Then he replaced the I-thought-he-was-reaching-for-his-gun narrative with the I-felt-him-reaching-for-my-gun-in-my-holster story to conceal that he had already drawn his gun before the physical encounter started.

Because he must have known that an aggressor cannot claim self-defense, he conveniently left out the part that he attacked and attempted to restrain TM. To justify using deadly force in self-defense, he claimed TM attacked him and was slamming his head against the concrete in an effort to kill him. Unfortunately for him, the wounds to the back of his head and the pattern of blood flow depicted in the photograph of the back of his head taken at the scene of the shooting disprove this scenario.

I have been wondering why GZ’s key chain and little flashlight were found next to the N/S sidewalk a few feet south of the T-intersection and close to the tree. This is Item 1 on the Total Station. The flashlight was on.

The rest of the items, including the tan 7/11 bag (Item 2), spent casing (Item 6), GZ’s black tactical flashlight (Item 5) and TM’s cell phone (Item 7) were found close to TM’s body approximately 40 feet south of the intersection.

Why is the key chain and flashlight up near the intersection instead of with the rest of the items?

I have never believed TM attacked GZ at the intersection. I suspect he was hiding in the shadows one or two houses down from the intersection talking to DeeDee on his cell phone when GZ spotted him from the intersection.

I think GZ most likely was running or jogging E/B on the cut-through sidewalk from RVC, where he went to see if TM was running S/B toward the rear entrance to the neighborhood. When he did not see him, he realized TM must have run into the area between the two rows of townhouses. He turned around and retraced his route spotting TM from the intersection.

Here are my 13 questions searching for an answer.

1. Did GZ unholster his gun when he spotted TM and dislodge or drop his key chain and flashlight?

2. Did he grab the flashlight with one hand and the gun with the other?

3. Did he need two hands to grab the gun and drop the flashlight unintentionally as he grabbed the gun?

4. Where was it?

5. Was it hooked to his belt or a belt loop on his pants?

6. Was it in a pocket?

7. Was he holding it?

8. Was it turned on?

9. Why would he risk turning it on, possibly making himself a target, if he believed TM might be armed?

10. If so, when did he turn it on and why?

11. Did he even know that he dropped it?

12. Did he run into the tree, bump and bloody his nose or did TM hit his nose during their struggle?

13. Why is GZ’s 6-inch tactical flashlight near TM’s body?


Zimmerman: Is Mark O’Mara Clueless as well as Ineffective?

July 24, 2012

JD, who comments regularly at my site and who provided the invaluable overlay of a Google Earth Satellite photo onto the SPD Total Station diagram of the objects found at the crime scene, asked the following question:

His lawyer [Mark O’Mara] seems to want to make a point that GZ was still 17 at the time the cousin [W9] claims he was 18 and she 16. If none of this ever happened, what’s the point in making that claim?

Statutory rape statutes establish the age of consent, which is usually 16, and provide exceptions based on the age of the other person. In effect, these exceptions establish a sliding scale of criminal liability. For example, no crime would be committed if a 16-year-old boy had consensual sex with a 15-year-old girl.

I am not familiar with the Florida statutes, but O’Mara appears to have been pointing out that, even if W9’s allegation were true, it would not constitute a crime because she and GZ were too close in age.

That ignores her claim that she never consented to sexual contact.

Statutory rape statutes eliminate consent as a defense. Since she did not consent, the statutory rape statutes do not apply.

Assuming her allegations are true, we’re looking at rape and indecent liberties type offenses.

Rape requires proof of penetration “however slight,” and includes digital penetration.

Rape is generally classified into three degrees:

R1: forcible penetration while armed with a weapon;

R2: forcible penetration; and

R3: non-consensual penetration.

A victim is not required to physically resist in order to establish that she did not consent to sexual penetration. In other words, “no” means “no.”

I say “she” because W9 is a female and this article is about her allegations. It’s important to remember that males also can be victims of sex offenses. Jerry Sandusky’s sexual predation is a current example that is fresh in everyone’s mind.

Most date rapes fall into the R3 category where the perpetrator does not use force and the victim does not consent or physically resist.

During my career as a felony criminal defense lawyer, I did not see many cases that started out charged as R3. Instead, cases that started out as R2s and occasionally R1s were bargained down to R3s, due to proof difficulties.

I concede that my legal experience falls into the dreaded category of anecdotal information and I do not know if there are any studies that confirm it. Suffice to say that the R3 category has been a source of continuing debate in our society.

Indecent liberties offenses consist of fondling and may be forcible or non-consensual.

States also have statutes that exempt children from criminal prosecution below a certain age. I am not sure what it is in Florida, probably 10 or 12.

States also have statutes of limitation that prohibit prosecution after a certain time period passes. The states vary quite a bit in the area of sex crimes involving children because children are so reluctant to accuse their abusers until later in life, if at all.

I do not know whether GZ has any possible exposure to criminal charges based on W9’s allegations, given the passage of time.

I did not get the impression that W9 was seeking to have GZ charged with a criminal offense. I think she felt guilty for not reporting the abuse to the police because if she had, that might have changed his life in a way that would not have led to him killing TM.

She wanted the police to know that he is a frightening and intimidating person who lies and uses charm to manipulate and control others. She did not want him to lie, charm and talk his way out of responsibility for killing TM as he had gotten away with sexually abusing her for so many years.

That was the message she wanted to convey.

When O’Mara said GZ was still 17 at the time W9 claimed he was 18 and she 16, he was saying that even if GZ did what she claimed he had done to her, he did not commit a crime.

As with other aspects of this case, O’Mara seems utterly clueless.

Because she was not seeking to have him charged and I do not believe the prosecution is even considering charging him for what he did to her, I am not going to review Florida’s sex crime statutes to determine whether GZ has any potential exposure to criminal liability for rape, statutory rape and indecent liberties.

Such an inquiry and a discussion about it would be irrelevant and distracting. Readers who want to know can always look up the answer by reviewing the Florida Statutes.

Keep in mind that regardless whether the alleged misconduct constitutes a chargeable offense, it will not be admissible during the State’s case in chief pursuant to Rule 404(b). The only way the jury would get to hear about it would be if the defense opened the door by introducing evidence that GZ is a law abiding, peaceful and non-violent person who would not have killed TM, unless it was in self-defense.

Presumably, the defense would never risk opening that door.

As I demonstrated previously, but for O’Mara’s failure to let Judge Lester know that W9 had provided a tape recorded statement to law enforcement accusing GZ of digitally penetrating her vagina and fondling her multiple times during a 10-year period that began when he was 8 and she was 6, the public would not know about W9’s accusation.

He did not do his client any good by failing to keep her allegation from being released to the public.

In my title to this article, I asked if O’Mara was clueless as well as ineffective.

I think we know the answer.


Zimmerman: How to Select a Jury Despite the Child Molestation Allegation

July 22, 2012

Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.

To keep it simple, we are going to focus on W9’s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.

This is what she said:

The sexual abuse consisted of digital penetration of her vagina and fondling.

She ended it when she was 16 and later told her parents. Her parents told his parents.

She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.

Our client denies that he ever sexually molested her or anyone else.

We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.

We know that many, possibly all of the people in the jury pool, have heard or read her story.

What do we do?

First, let’s back up. We would have spent the past week developing a juror questionnaire. A section of that questionnaire covered pretrial publicity.

We would have prepared a short summary of the case telling the prospective jurors the names of the defendant who is White/Hispanic and the alleged victim who is Black, the date and location of the incident, a brief statement of what allegedly happened, and a statement that the defendant has admitted shooting the victim to death, but claims he did so in self-defense when the victim attacked and attempted to beat him to death. The victim was unarmed and the incident was extensively reported by the media and discussed over the internet.

Each prospective juror was then asked on the form, if they recalled anything about the incident, and if so, to write down everything they could recall about it.

Then they were asked if they had formed an opinion about the case and, if so, what it was (i.e., guilty or not guilty), whether they had ever expressed it to anyone, and how often they had expressed it.

They also were asked if they had ever argued with anyone about the case.

After the jurors reported to court, they were instructed to fill out the form. They identified themselves by juror number, rather than name, and told the forms would be destroyed after the case.

They also were instructed that they had to be truthful and sign and declare under penalty of perjury that the information they provided was true and correct to the best of their knowledge and belief.

The forms were collected and copied. The prosecution, defense, and the judge each have a set.

We have reviewed our set. We set aside all of the jurors who have no recollection of the case and sorted those who do into two categories: those with opinions and those without.

Now, we aside everyone without an opinion and sort those who do have opinions into two categories: those who believe the defendant is not guilty and those who believe he is guilty.

Since we are representing the defendant, our category of best jurors will include everyone who said he was not guilty.

We are not interested in this group at this time, so we also set them aside

Question: Why do we do that?

Answer: Because jury selection is a process of choosing the prospective jurors we want to eliminate. The final product will be whomever is left after each side eliminates the prospective jurors they do not want. There is a limit to how many prospective jurors we can eliminate, however, so we have to choose carefully.

Therefore, we are going to focus on the category of prospective jurors who believe our client is guilty and rank them according to how strong their opinions are and how much they know about the case.

Those with the strongest opinions based on the most knowledge of the case will be our targeted set of prospective jurors to eliminate. Some portion of these prospective jurors will have commented to the effect that the defendant is a child molester.

We will want the judge to excuse these people.

Individual voir dire: We will question the prospective jurors individually out of the presence of the others to avoid infecting the others with prejudicial information.

Challenges for Cause: We have an unlimited number of challenges for cause. To successfully challenge a prospective juror for cause (i.e., persuade the judge to excuse the prospective juror), we have to show that the prospective juror cannot be fair and impartial.

Establishing that the prospective juror believes our client is guilty is only half the battle. The critical question is whether we can persuade the prospective juror to admit that his or her opinion is so strong that he or she cannot honestly presume our client is innocent.

Peremptory Challenges: We have a limited number of peremptory challenges. When selecting a 12 person jury, each side gets 6 peremptory challenges. Unlike a challenge for cause when we have to convince the judge that the prospective juror cannot be fair and impartial, with only one exception we do not have to provide any reason to support or justify a peremptory challenge. This is why there is a limitation on the number of peremptory challenges.

Exception to the Rule: Neither side can use peremptory challenges to systematically exclude prospective jurors based on race, gender, or religion.

Basis for this exception: To stop the routine prosecution practice in the South of using its peremptory challenges to disqualify all Black prospective jurors in cases where the defendant was Black. Since then, the prohibition has been extended to apply equally to the defense and to cover gender and religion.

What this exception means for us: We cannot use our 6 peremptory challenges to systematically exclude Blacks from the jury.

This does not mean we cannot exclude some Black people, but we have to have a reason unrelated to race and we had better be consistent in excluding White prospective jurors for the same reason.

If we do not, our peremptory challenges will be denied and we will likely be held in contempt of court.

How do we get a prospective juror to admit he or she cannot be fair or impartial?

Answer: We start by asking the prospective juror to explain why he or she believes they can disregard their opinion and presume our client is innocent.

If the prospective juror mentioned the child molester factor, get it out on the table and ask them how they could presume our client innocent, despite believing he is a child molester.

When they finish their explanation, ask them if they had to vote now, without having heard any evidence, what their verdict would be.

The typical response will be, “I can’t do that.”

Why not? you respond.

“Because I don’t have any evidence upon which to base a verdict.”

“Would you want the prosecution to introduce evidence to prove its case?

“Yes, of course.”

“How about the defense. Would you want the defense to introduce evidence to prove self-defense?”

Would you want the defense to introduce evidence to prove he is not a child molester?”

“Yes.”

“What happens if the defense doesn’t change your opinion?”

“I would vote guilty.”

At this point, you thank the prospective juror and say, “Your Honor, I respectfully challenge the prospective juror for cause because he has demonstrated that he cannot presume my client innocent and he would expect us to change his opinion that our client is guilty.”

The prosecution would be permitted to attempt to rehabilitate the prospective juror.

If successful, the judge would deny the challenge for cause and we would have to use one of our precious peremptory challenges to excuse him.

One down, five to go.

If unsuccessful, the judge would excuse the juror for cause and we would still have our 6 peremptory challenges.

In this manner, we would proceed through the panel of jurors until we have passed 24 jurors for cause, plus 3 for 1 alternate. (Total: 27)

If both sides exercise all of their peremptory challenges, there will be 17 left.

If both sides exercise their 1 peremptory challenge each against a potential alternate juror, there will be 12 jurors left, plus one alternate.

Key points to remember:

1. Sort the prospective jurors according to the order in which you want to get rid of them.

2. Keep asking open ended why-type questions and follow-up on the answers.

3. Every time you fail to get a potential juror excused for cause, you will have to use a peremptory challenge to get rid of them.

4, You have only 6 peremptory challenges.


Zimmerman: Oh the Irony of it All!

July 21, 2012

Scales of Justice
image by DonkeyHotey on creative commons, flickr

W9 is George Zimmerman’s cousin. On Monday, July 16th at 11 am, the prosecution released her tape recorded statements to the media in which she accused George Zimmerman and his family of being racially prejudiced against African Americans and George Zimmerman specifically of sexually molesting her multiple times during a 10-year period that began when she was 6 years old and he was 8. She is now 26 and he is 28. The two families have lived in the same community and socialized together often during that period.

She said the molestation incidents involved fondling and digital penetration of her vagina. She said she finally ended the sexual abuse by getting away from him and running out of the house. She told her parents and they told his parents. Due to pressure from her parents and because she feared Zimmerman would hurt her, she decided not to report the sexual abuse to the police. After that Zimmerman was no longer invited to family social events.

She first contacted the police anonymously two days after Zimmerman shot and killed Trayvon Martin, She told them he was racially prejudiced and capable of hurting people.

They interviewed her a second time after he was in jail charged with second degree murder. When they asked her why she had waited so long to report the sexual abuse, she said it was the first time she felt safe.

A virtual tsunami of outrage and disgust swept the country and the world after the media reported W9’s accusations and various news organizations posted her two tape recorded statements on their websites.

Anticipating the public furor that would follow the release of the tape recorded statements, Zimmerman’s defense attorney, Mark O’Mara, posted the following statement on his website:

The defense moved to block the public release of Witness #9’s statement in a motion filed on June 18, 2012 contending “The content of this statement is not relevant to the issues of this case, and it would not be admissible in the State’s case in chief.” The motion further contends that this irrelevant statement should be withheld from public dissemination [pursuant to Florida’s Sunshine Law] because of the substantial risk that public disclosure will lead to widespread hostile publicity which would substantially impair the Defendant’s fair trial rights, and would pose a serious threat to the administration of justice.

That request was denied on July 13, 2012 by Judge Lester. Because there is a [defense] Motion for Disqualification [of Judge Lester] pending, this morning [Monday, July 16th], we asked the prosecution not to release Witness #9’s statement until there was a ruling on the Motion for Disqualification. This is an appropriate request as, should the motion for disqualification be granted, reconsideration of recent rulings by the judge is appropriate. However, the prosecution elected to make the public disclosure anyway.

Did Mark O’Mara handle this matter appropriately, or did he fumble the ball?

For the following reasons, I contend that he fumbled the ball prejudicing his client.

Let’s review the facts, keeping in mind that W9 made two statements. Statement 1 was about race and Statement 2 was about sexual molestation.

1. 05/24/2012: State files a Request for a Protective Order seeking non-disclosure of W9’s statement;

2. 05/24/2012: Defendant’s concurrence;

3. 06/01/2012: Hearing on the Request for a Protective Order;

4. 06/13/2012: Order Denying Request for Protective Order;

5. 06/18/2012: Defendant’s Motion for Reconsideration specifically mentioning W9’s second statement (accusing defendant of sexual molestation), but not describing the subject matter;

6. 06/29/2012: State’s Response to Motion to Reconsider Disclosure;

7. 07/13/2012: Defendant’s Motion to Disqualify (filed at 11:20 am);

8. 0713/2012: Order Denying Motion for Reconsideration (filed @ 12:02 pm). Judge Lester says W9’s statement is admissible and should be released to the media because race may be an issue at trial;

9. 07/16/2012: Defendant’s Motion for Stay of Order Denying Reconsideration (filed at 10:56 am) arguing that the order must be stayed until the Motion to Disqualify is decided because it was filed first.

10. State releases W9’s two tape recorded statements at 11 am.

Keep in mind that neither side wanted to disclose the sex statement in a pleading that could be viewed by the public. Instead, O’Mara referred to statements 1 and 2, without clarifying that they involved different subject matter.

What we got here is . . . failure to communicate.

Judge Lester apparently thought both statements referred to race because he specifically said the statement might be admissible since race might be an issue. I am not surprised that he assumed both statements referred to race because the discovery released to date contains multiple recorded statements by witnesses concerning the same incident or subject matter.

The order was filed at 12:02 pm on Friday the 13th (oh, the irony), approximately 30 minutes after O’Mara filed his Motion to Disqualify. Therefore, he had Friday afternoon, the weekend, and Monday morning until 11 am to obtain an order directing the prosecution to hold off on releasing W9’s statement 2 until the matter could be reconsidered, but he did not git ‘r done.

He also did not appeal the order to the Court of Appeals.

The problem was further complicated by the judge going on vacation this past week and next week. Therefore, O’Mara had to act Friday afternoon. However, even if Judge Lester had been available Monday, he could not have acted on the motion to stop the release of W9’s statement before the prosecution released it, since the motion was filed only 4 minutes before the statement was released.

What should have been done?

An emergency oral motion and argument via conference telephone call on Friday afternoon seems to be the most obvious solution, but it did not happen. Alternatively, an emergency request for a stay before the presiding judge on Monday morning might have worked, or an emergency appeal to the Court of Appeals.

O’Mara did not attempt any of these options.

Will the evidence be admissible at trial?

Not during the State’s case in chief because it does not fall into one of the categories of admissible uncharged misconduct evidence that is admissible pursuant to Rule 404(b). If and only if the defendant were to open the door by introducing evidence that he has a law abiding, peaceful and non-violent nature, would the prosecution be able to march through the open door and confront him with W9’s accusation that he was a child molester. That is extremely unlikely to happen.

Therefore, there is no good reason to believe the evidence will be admitted at trial.

Should W9’s statement have been released to the media?

Probably not, under Florida Freedom Newspapers Inc., v. McCrary, 520 So.2d 32, 35 (Florida 1988) because:

(a) restricting public access to it was necessary to prevent a serious and imminent threat to the administration of justice;

(b) no alternative, other than a change of venue would protect Zimmerman’s right to a fair trial; and

(c) closure would be effective to protect Zimmerman’s right to a fair trial, without being broader than necessary to accomplish that purpose.

How much damage has been caused by the release of the statement?

How does one unring a bell rung round the world? The damage to Zimmerman’s defense is incalculable and the parties will not know how far and wide it may have spread until they attempt to select a jury.

Will they be able to select a jury?

Yes, I believe they will be able to eventually seat a jury of people who claim not to know about W9’s allegation or, if they do, they will claim to be able to disregard it in deciding whether the State has proven Zimmerman guilty of murder in the second degree beyond a reasonable doubt.

Sayin’ it’s so, don’t mean it’s so.

If he is convicted, will this be an issue on appeal?

Not likely. If they are able to seat such a jury and it convicts Zimmerman, a reviewing court will assume the jury followed the law and did not consider W9’s allegation in deciding the case.

If he is convicted, could this be an issue raised as an ineffective assistance of counsel claim in a state or federal habeas petition?

No, for the same reason.

Conclusion

This was an avoidable mishap that never should have happened. Mark O’Mara bears the responsibility for letting this issue slip through his fingers. But for being so busy cranking out his groundless Motion to Disqualify Judge Lester, he might have had the time and the energy to correct the problem before 11 am on Monday morning.

The convergence of coincidences is remarkable, however, almost as if this happened according to “God’s Plan.”


I Worry About Mark O’Mara and George Zimmerman

July 20, 2012

O’Mara -“The client always calls the shots,” his lawyer, Mark O’Mara said Thursday.

One of the most contentious issues in the field of criminal defense is how to handle the difficult client.

Many lawyers are like Mark O’Mara and devote their efforts to assisting their clients to make informed decisions. I have seen some lawyers, for example, ask a jury to sentence their client to death because that is the outcome the client desired.

I have seen too many people change their minds after being sentenced to death, so I decided long ago to refuse to facilitate a client’s desire to commit suicide.

For some reason, I have had more than my share of difficult clients where we disagreed on strategy and desired outcomes. I refused to allow the client to drive the bus over a cliff and, if it came down to irreconcilable differences, I moved to withdraw.

GZ is the quintessential difficult client. He is paranoid, secretive, fearful, angry, stubborn, doesn’t trust anyone, controlling, believes he’s smarter than anyone else, manipulative, and probably delusional. It’s absolutely clear that he does not feel any emotional distress or regret for having killed TM.

His claim that TM died as part of “God’s Plan” exhibits a frightening dissociation from reality and a willingness to kill without any sense of responsibility or regret, if he deems it necessary to do so. In other words, if he should find himself in another situation where he believes he is cornered and needs to kill someone to save face or save his ass, I believe he’s likely to do so and excuse what he did as just carrying out God’s will.

I think he is a danger to himself or others and he belongs in a secure mental health facility or a jail. He needs a thorough mental health evaluation.

I fear that Mark O’Mara is a potential victim and I am concerned about his safety. He’s clearly lost control of GZ despite his protestations to the contrary. GZ clearly sees O’Mara in the way and O’Mara has to be very careful how he handles the “uncharted waters” (his words) in which he finds himself.

If he pushes too hard in an effort to regain control, assuming he ever had control, things could get ugly.

I think he needs to withdraw because there is basically nothing he can do at this point without potentially placing himself in danger. GZ is not going to listen to him anyway, so he might as well get out of the case. He needs to recognize that his dreams of fame and fortune have turned to dust. There is not going to be any money for him and he needs to get out while the gettin’ is good.

Now, back to the question of who should call the shots.

I firmly believe the lawyer has to call the shots with input from the client, obviously. According to the rules of professional conduct, the client only gets to decide whether to plead guilty or not guilty and whether to testify or not testify. The rules provide that the lawyer has the responsibility and the duty to make the other decisions using independent professional judgment in the best interests of the client.

In my professional opinion, O’Mara is abdicating that responsibility when he says the “client calls the shots.” Having said that, I do not believe that he would have succeeded in getting control of GZ, if he had attempted to do so. He certainly cannot do it now.

Regardless whether a person believes GZ is guilty of murder in the second degree or not guilty by reason of self-defense, I believe everyone needs to realize that GZ is a volcano waiting to explode, despite no trial date having been set. The pressure, anxiety and fear will only increase geometrically as the case gets closer to trial.

Ask yourself if you would show up without your lawyer dressed in a tee-shirt and jeans to meet Barbara Walters and her film crew to do an interview for her show, The View, and at the last possible moment try to change the deal to get ABC to pay for a month’s lodging in a hotel with a security detail.

Think about that. Who does something like that?

Consider also that he reactivated his website (therealgeorgezimmerman.com) Thursday after his disastrous interview with softball pitcher Sean Hannity on Wednesday night , after basically complaining that the website that O’Mara established for him was,

(1) failing to correct distortions and falsehoods published by the media (even though his games to hide the internet donations and his contradictory and false statements have been the source of most of what has been reported);

(2) failing to get his message across; and

(3) failing to raise enough money to fund his lifestyle, security detail and pay his lawyer’s fees.

This is crazy behavior that does not bode well for the future.

I believe he is going to crack before too long as he realizes that his support is evaporating and he sees the bills rising and the walls closing in. I believe he may take his own life, commit suicide by cop, or he may take the life of another who pushes his button.


Zimmerman: A Spectacular Fail!

July 19, 2012

Watt4Bob at Firedoglake posted a comment to my article, Should Mark O’Mara Withdraw as Counsel for George Zimmerman? He asked the following question, which probably is on most everyone’s mind this morning after the Sean Hannity interview of George Zimmerman last night.

I want to ask both Hannity and O’Mara what the hell good they think they did for that pathetic man, but I realize neither of them gives a damn and GZ is oblivious.

I can answer that question with three words:

EXPLOITATION. FOR. MONEY.

I am furious.

I cannot imagine myself, or any criminal defense attorney whom I respect, ever, under any set of circumstances, short of cardiac arrest, loss of consciousness or death, sitting passively beside my client as he denies any regret for killing an unarmed teenager, or anyone else for that matter, because it was “God’s plan” for him to die.

And to follow that statement with an “apology” to the kid’s parents in which he says he’s sorry they had to bury their child because he knows what it would be like to lose one of his as yet unborn children is . . . well,

What is it?

And all of this was delivered in a soft monotonous voice without any detectable trace of emotion as though he were describing doing the laundry.

Are there words that capture the depravity and emptiness of that shell of a human being?

If any of you were concerned whether the prosecution could prove beyond a reasonable doubt that George Zimmerman killed Trayvon Martin while acting with a depraved mind,, you need not worry any longer.

The prosecution must be drinkin’ the bubbly and dancin’ in the street.

I assure y’all, no client of mine would ever have said anything like that on national television with me present because I would have done something, anything, even ripped off my clothes and mooned Amerika in all my naked glory, just to shut him up.

And this appears to have been scripted.

Jesus Christ on a bicycle.

Can there be any doubt who is calling the shots for the defense?

George Zimmerman is representing himself with Mark O’Mara dancing to his tune while playing the role of his attorney.

If anyone still believes George Zimmerman is not a devious and manipulative person, please listen to this audio recording of a jailhouse telephone call when he called right-wing Pastor Terry Jones of let’s-all-of-us-sinners-party-on-the-lawn-burnin’-Korans fame to pray with him for the healing of America and ask him to cancel a pro-Zimmerman demonstration to calm people down.

Hell, listen to it anyway.

Just for the halibut.

(h/t to Crazy1946 @ my website for spotting this recorded conversation and posting a comment about it)


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