Zimmerman: A Possible Strategy by Which He Could Win Without A Trial

October 31, 2012

I was disappointed, but not surprised by Judge Nelson’s decision denying the State’s motion for a gag order.

Instead of considering the possibility that Judge Nelson might or might not grant the gag order, I spent the weekend, plus Monday and Tuesday, thinking about the possibility that the defense is attempting to rig the outcome of the Zimmerman case with its aggressive effort to try the case in the court of public opinion. For reasons that follow, I worry that Judge Nelson and the prosecution may have underestimated the potential for abuse represented by the defense effort to win its case in the court of public opinion.

In this article, I propose a theory or possible explanation for the unusual defense effort to aggressively present the Zimmerman defense in the court of public opinion without fear that the prosecution will respond and participate in a meaningful adversarial manner. For example, the theory I provide would permit the defense to claim that Zimmerman acted in self-defense and rely on his inadmissible hearsay statements instead of calling him as a witness and subjecting him to cross examination.

The defense also could solve the serious problems presented by forensic evidence that refutes or is inconsistent with Zimmerman’s hearsay statements by simply ignoring them without fear that the prosecution would do anything.

The defense is not likely to request or agree to a change of venue and the prosecution probably does not have a right to a change of venue.

I believe the defense has been pursuing and will continue to pursue a strategy designed to try its case in the court of public opinion, rather than the courtroom.

The strategy serves three important functions by

(1) keeping the case in the news;

(2) anchoring the defense theory of the case in people’s minds via repetition; and

(3) weighing the importance of the evidence in relation to whether it supports the defense theory of the case.

Meanwhile, defense control of the message generally goes unchallenged because the prosecution rarely comments.

Nevertheless, the prosecution’s silence probably has not damaged its case in any significant manner because Zimmerman’s statements to police are in conflict with the physical and forensic evidence and inconsistent with each other. Also, who will ever forget Zimmerman’s appearance on the Sean Hannity Show when he denied feeling any responsibility or regret for killing Trayvon Martin because his death was due to God’s Plan.

Given Zimmerman’s ongoing and potentially catastrophic damage to his case, I have been struggling to figure out why the defense has been so determined to try its case in the court of public opinion. That is an extremely unusual strategy for the defense to use in any criminal case. Imagine how different the case would appear to be, if only Zimmerman had asserted his Fifth Amendment right to remain silent.

Let us assume for the sake of argument, that the defense had a legitimate reason to try the case in the court of public opinion. What might it have been?

I suspect they may have assessed Zimmerman’s chances of winning the immunity hearing or the trial as unlikely, given the physical and forensic evidence as well as as his inconsistent and conflicting statements.

If that were true, I can visualize them concluding that Zimmerman’s best chance to win, given the percentages of prospective jurors in Seminole County who are going to be White, conservative or racist, would be to try to win the case in the Seminole County court of public opinion in hopes of seating at least one or two and possibly all six seats on the jury with people who fit into those categories.

Even if they were to succeed in seating only one such person, that juror might vote “Not Guilty,” regardless of the strength of the evidence against Zimmerman.

If that were to happen, that would be an example of juror nullification based on racial prejudice.

For these reasons. I am recommending that we consider and discuss the following theory.

The defense strategy is to aggressively try the case in the court of public opinion in Seminole County in order to maximize public support for Zimmerman among White radical-right-wing conservatives, in hopes of seating at least one and possibly more of them on the jury.

+++++++++++


Zimmerman: Judge Nelson Denies State’s Motion for Gag Order

October 29, 2012

Important Announcement

NBC News in Miami announced that Judge Nelson issued an order this afternoon denying the State’s Motion for a Gag Order. She said it was not necessary at this time.

By separate order also issued today:

The trial is scheduled to begin June 10, 2013. In a separate order Monday, Nelson said that final witness lists, including any expected expert witnesses, should be exchanged by March 27.

Any self-defense immunity or Stand Your Ground motion should be filed and heard by April 26, and any other pretrial motions should be filed and heard by May 10, which is 31 days before the trial, Nelson wrote.

The next hearing in the case is Dec. 11 at 9 a.m

Hopefully, there will be more information about this later.

Stay tuned.


Zimmerman: O’Mara Adds Sanford Police Officials to Defense Witness List

October 25, 2012

Rene Stutzman reported late yesterday in the The Orlando Sentinel:

George Zimmerman’s lawyers Wednesday notified prosecutors that their witness list now includes a who’s who of the Sanford Police Department’s chain of command at the time of Trayvon Martin’s death, including the police chief, major crimes captain, sergeant and case detectives.

-Snip-

Wednesday’s defense witness list has on it a dozen names, including former chief Bill Lee; Bob O’Connor, the major crimes captain who oversaw the investigation; Lt. Randy Smith, the former sergeant who supervised the detectives investigating the case; and lead Investigator Chris Serino.

As I have written here and here, this hullabaloo is much ado about nothing, as far as the Zimmerman case is concerned.

The reason is that the opinions of the various individuals regarding the sufficiency of the evidence against Zimmerman are irrelevant and inadmissible at Zimmerman’s trial.

The scheduled depositions may have an impact, however, on the ongoing federal investigation into whether Zimmerman may have violated federal laws prohibiting hate crimes when he killed Trayvon Martin.

I said “may” because I suspect that the federal investigation may have widened to include investigating the identified individuals and others for conspiring to conceal Zimmerman’s commission of the murder by not charging Zimmerman with a crime.

I think they would be well advised to consult with counsel before their scheduled depositions to discuss whether they should assert the Fifth Amendment and refuse to answer any questions pertaining to the investigation and their respective roles.

I believe there is much more to this story, so no one should be surprised if the depositions are suddenly cancelled without explanation.


Zimmerman: Judge Nelson Should Fine Mark O’Mara $1,500 for Publicizing his Motion for Prophylactic Sequestration

October 24, 2012

I believe Judge Nelson should fine Mark O’Mara $1,500 for posting his Motion for Prophylactic Sequestration of Witnesses in the Zimmerman case on his website.

I criticized this bizarre motion in Zimmerman: Defense Motion for Prophylactic Sequestration of Witnesses Reaches a New Low.

I said,

First, O’Mara is revealing the opinions of cops overseeing an investigation. Their opinions are irrelevant and inadmissible. The evidence is whatever it is and it alone constitutes probable cause to believe a crime was committed or it does not.

Second, revealing their opinions in a motion is an underhanded way of creating an excuse to publicize that they opposed charging Zimmerman with a crime.

Third, if they were genuinely concerned about a need to order witnesses to not collaborate with each other, they should have filed the motion under seal.

Fourth, it would have been in the best interest of the defense to have the witnesses collaborate with each other so that they all objected to filing criminal charges, but that sounds like what they were going to do anyway. Therefore, there was no need for the relief he sought in the order.

I concluded:

For all of these reasons, seems pretty obvious to me that the real purpose of the motion was to publicize what should have been kept private; namely, that the brass did not want to charge Zimmerman.

The more that I think about this motion the more irritated I become.

The scope of permissible discovery is very broad and not only includes the right to discover all information relevant to the lawsuit; it also includes the right to discover all information that might reasonably be expected to lead to the discovery of relevant information.

Because the scope of permissible discovery is so broad, there have to be some limitations on what the lawyers can do with the information they obtain through discovery. Keeping the information private is one such limitation.

Let us now take a look at depositions.

Lawyers depose (i.e., question) the opposing party’s witnesses under oath in the office of the lawyer who represents the opposing party. Other than the two lawyers and the witness, the only person present is a certified court reporter who administers the oath to the witness and records everything said by the lawyers and the witness during the deposition.

There is no judge to rule on objections. Instead, objections are noted for the record and the witness answers the question. Later on, if the trial court orders the deposition published and it is read in open court, the judge can consider the objection and rule on it. Depending on the ruling, the answer given by the witness during the deposition may or may not be read in open court.

In extraordinary circumstances during a deposition, the lawyers may suspend it to go to the courthouse to seek a ruling on an objection before resuming. The basic idea, however, is to allow the lawyers to conduct a deposition to create a thorough and private record of witness responses.

I emphasize the importance of privacy because the scope of a deposition may intrude into sensitive and private matters that might embarrass a witness, or protected matters such as trade secrets that might compromise a business, if publicized.

O’Mara’s very public revelation, in his motion for prophylactic sequestration of witnesses, of what the witness disclosed during the deposition about the opinions of the members of the group of Sanford Police Department officials regarding whether to charge Zimmerman with a crime is a major game misconduct because he revealed private information that most of the members of that group did not believe Zimmerman should be charged. Not coincidentally, that information could benefit Zimmerman by influencing prospective jurors to believe that Zimmerman should not have been charged with a crime, let alone second degree murder.

Why is that bad?

The answer is that a jury verdict must be based only on the evidence admitted in court. The opinions of the police officials are not evidence and have no evidentiary value. The rules of evidence do not permit that type of testimony to be presented at trial because it might influence jurors to base their verdict on opinions or speculation of the police officials rather than the evidence.

O’Mara knows this or should know it and this is why he never should have filed his motion for prophylactic sequestration of witnesses. BTW, this is an extraordinary and unusual request that I have never heard of and I do not believe there is any legal authority that supports it. Nevertheless, he was so eager to publicize the dissenting opinions of the police officials that he filed the motion without citing any legal authority authorizing Judge Nelson to grant the relief he requested, despite a rule that requires a lawyer to cite legal authority in support of any request to have the trial court do something.

Then he published his motion on his website for all the world to see.

This is why I am so offended by what he did.

I would be furious, if I were Judge Nelson and I would strike the motion, hold him in contempt, and fine him $1,500. I would do this in open court at Friday’s hearing for all the world to see. I also would warn him that if he does it again, I would put him in the slammer for a week.

Then I would ask him to give me a reason why I should not impose a gag order as requested by the prosecution.

I would, of course, give due consideration to the Florida Sunshine Law and the public’s right to know what is going on. I would probably end up denying the motion for the gag order without prejudice. That would allow the prosecution to refile it, if it should decide to do so.

BOTTOM LINE: O’Mara needs to stop trying his case in the Court of Public Opinion.


Zimmerman: Malisha Cuts to the Chase Exposing O’Mara’s Pitch to Racists for Money

October 24, 2012

I am featuring Malisha today. She has a special way of piercing the veil revealing the truth behind it that makes me want to stand-up and cheer.

In this comment at 3:01 am today, she takes on Mark O’Mara’s pitch for money:

O’Mara doesn’t say, “If you believe George Zimmerman and you believe it was self-defense, send money,” he says, “If you would have done what he did.”

Why would anybody believe George if they never met him? “If you would have done what he did…”?

So, would that include:

If you would have thought Trayvon was suspicious because he was walking in the rain.

If you would have thought Trayvon was “up to no good” because he was “just lookin’ about.”

If you would have thought “somethin’ was wrong with him” because he wasn’t an athlete training hard in the rainfall. (Why should anybody walking along have to be an athlete, may I ask?)

If you would have said, “These assholes, they always get away.”

If you would have said, “Fucking punks.”

If you would have gotten out of your vehicle to give chase.

If you would have continued your pursuit after the dispatcher told you, “We don’t need you to do that, OK?”

If you would have answered, “No, man, I don’t have a problem” rather than saying, with your hands in the air to show that you weren’t threatening, “No, man, I don’t have any problem with you, just wanted to check on you because I’m with the Neighborhood Watch Group here and we check out folks we don’t recognize…are you new to this area?”

If you would have failed to take the reasonable step right then if you felt Trayvon was threatening to YOU, that is, stepped BACK three feet or so and drawn your gun, saying: I’m armed, don’t move, the police are on their way.”

If you would have made every single stupid move (or every single aggressive, threatening, thuggish move, if he was doing all this on purpose and not just stupidly) that George would have made that night, resulting in his killing an unarmed teen-ager, and:

IF YOU WOULD HAVE GONE ON HANNITY AND SAID THAT YOU DID NOT REGRET A SINGLE THING YOU DID THAT NIGHT,

Then, by all means, send money. Because if George gets convicted, you will have to live in a world where you realize, to your dismay, that YOU TOO are subject to law and order in this country, that NEITHER GEORGE NOR YOU are not free EITHER to go kill some kid you don’t like and get away with it. So send lots of money. Protect yourself from having that terrible feeling that you’re not FREE to KILL and LIE and DISRESPECT and GET AWAY WITH IT.

Thanks, Malisha for all that you do. Keep speaking out because you speak the truth and your voice is needed in these troubled times.

Pimping the Conservative Treehouse Crazies for Money is Morally and Ethically Reprehensible.


Crime Lab Fraud

October 23, 2012

This post is by Crane-Station

By now, most of us have heard of Massachusetts crime lab chemist Annie Dookhan. Ms. Dookhan was arrested in September for allegedly obstructing justice by falsifying her lab work, providing false testimony and lying about her credentials. The lab has shut down and the investigation is ongoing. Her fake work may have affected as many as 60,000 lab results involving as many as 34,000 accused. Many wrongfully convicted inmates have already been released. Ms. Dookhan faces 20 years in prison if she is convicted.

In my opinion, twenty years is a slap on the wrist, given the egregious amount of damage a wrongful conviction inflicts on a person’s life and family. A twenty-year sentence for a crime of nonviolence can in reality only amount to as little as three to four years served before parole eligibility. I am personally in favor of per se zero-tolerance laws regarding forensic fraud: Any time a lab analyst falsifies lab results, falsely claims not to have the ability to test for items, lies about education or credentials, presents fake, made-up science to juries, or passes him or herself off as an ‘expert’ in clinical medicine and presents inappropriate and false clinical testimony to juries, that person should be subject to life in prison without the possibility of parole. Such actions amount to nothing less than rape, under color of a white coat.

The Massachusetts lab scandal is anything but unique. Most of the media attention to forensic fraud thus far has been related to DNA technology and exonerations, however. Now it is time to look at non-DNA lab analyst fraud that, while it may not lead to a death sentence, it does lead to irreversible destruction of lives and careers.

Many of you know that I was convicted of a DUI in Kentucky with no bad driving and two exculpatory lab results, indicating 1) 0.00 alcohol content of blood and 2) “no drugs detected” in the blood. This DUI led to other charges and convictions related to a controlled substance the arresting officer supposedly ‘found’ in his cruiser after an hour-and-a-half long roadside search of my vehicle and my person revealed no illegal substances. I received an eight-year sentence.

At trial the prosecution advanced its theory: that I was dangerously impaired on my prescription medication, Klonopin. The dangerous impairment was obvious: I had supposedly “failed” a roadside HGN (horizontal gaze nystagmus) test. The reason the lab missed such a high level of this commonly prescribed medicine is that 1) the lab had no idea what to look for and 2) the lab had no way of testing for its presence and 3) if only the lab had known, it would have sent the blood to a third-party contract lab.

Six-and-one-half years after the arrest and affirmed convictions, I began looking at the trial testimony in my own case. I also made some inquiries. I learned, to my utter horror, that the lab did, in fact, have notification to look for this drug in my blood. I also learned that the crime labs typically do presumptive testing for substances. If nothing is detected during the preliminary testing, there is no need for confirmatory further identification and quantification because the drug in question was either 1) not present or 2) not present at any level of toxicological (or therapeutic) value or interest. I learned from a conversation with the maker of Klonopin that any trial testimony departure from the FDA-approved product insert is inappropriate.

At my trial, after misleading the jury in my case about the lab’s notification that this was indeed a drug to look for, as it was listed which as a valid prescription at the time of the arrest, the lab analyst put on his physician’s hat and provided a rather impressive false testimonial about 1) the drug’s “immediate effects” at therapeutic levels, including, but not limited to “both vertical and horizontal gaze nystagmus.” His testimony stands in stark contrast to the FDA-approved product insert (separating adverse events into two distinct and clear categories), the peer-reviewed PubMed literature, wherein at least fourteen articles discuss the use of this drug for therapeutic treatment of various types of pathological nystagmus, as well as at least one study specifically addressing impaired driving that found no correlation between HGN and Klonopin. All of these studies were completed and published before the lab analyst took the stand and provided the testimony that led to my convictions. To bolster his credibility and qualifications he offered a nonsensical explanation that sounded sort of technical nonetheless by stating that the “chlorine atom makes it so that liquid-liquid extraction is incapable of pulling [Klonopin] out of the blood.”* Having taken Organic Chemistry myself and having grown up with a father who co-founded a clinical laboratory in the Northwest, I was, to mildly understate, shocked to see these words come out of a lab worker’s mouth, when I reviewed the tapes.

If I get nothing else across in this post, I would like to convey some key concepts as follows. Forget CSI. Just because someone calls him or herself an ‘expert,’ a ‘chemist’ or an ‘analyst’ does not mean that they are. A white coat is meaningless. Crime labs are most often another police department and nothing more. Lab analysts are techs working for the prosecution and if they have to misrepresent an unambiguous exculpatory result as somehow inculpatory, they will. If they have to make up science, they will, just to get a conviction at all costs. With nothing more than a bachelor’s degree at most, crime lab analysts can and will misrepresent themselves and testify as clinical ‘experts,’ even if, as in my case, they have never seen or tested for the drug in question. Crime labs receive millions of dollars from the government (Paul Coverdell grants) with little or no oversight or accountability. When you give your blood in accordance with your state statutes, please, please, do not ever assume that you will be ‘cleared’ if the results come back negative. It is absolutely essential that you get extra tubes of blood drawn and sent to a competent clinical laboratory.

For further reading on this issue, please visit this University of Virginia Law Review article:

http://virginialawreview.org/content/pdfs/95/1.pdf

*During jury selection (voir dire) in my case, the prosecutor excused a prospective juror who was a chemical engineer because the prosecutor did not want someone with knowledge of chemistry to serve on my jury.


Zimmerman: Can the Prosecution Request the Trial be Changed to Another County?

October 23, 2012

Grey Winter Sky commented at 12:43 am:

“If a defendent feels that they cannot get a fair trial in the county/state that they live in, because the media has tainted the jury pool, and asks to have the trial moved elsewhere…..can the prosecution do the same thing? Since MOM seems to be conducting this trial in the court of public opinion, it would seen to be nearly impossible, as Prof. Leatherman pointed out, to find jurists that aren’t racist and very pro-George. Can the prosecution ask for the trial to be moved so that they will also have a fair trial?”

My Answer

That’s a very good question and I believe the answer is “No.”

A defendant has a Sixth Amendment right to be tried in the jurisdiction where the crime was allegedly committed.

The Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

If the State files a motion for a change of venue and the defendant objects, which I think Zimmerman would do pursuant to O’Mara’s advice, I believe Judge Nelson would have to deny the motion because, if she granted it, she would have violated his Sixth Amendment right to have case tried in Seminole County with a Seminole County jury.

At 10:22 am, BettyKath also responded to Grey Winter Sky’s comment. She said,

“There were some NYC cops who were tried in Albany for killing an unarmed young man, Amadeu Dialo. (SoBs got off. They used a Black prosecutor who didn’t mention that the cops were all white undercover and the victim was a young Black immigrant. 41 shots were fired by these sharpshooters of which only 19 were used to kill the Amadeu.)”

My Answer

The four NYPD cops who shot and killed Diallo were defendants and the case was moved to Albany to protect their right to a fair trial, given the extensive adverse pretrial publicity against them in NYC. That is consistent with their Sixth Amendment right.

Zimmerman probably would be entitled to a change of venue, given the extensive pretrial publicity, but I don’t believe he is going to request it because he and his lawyers believe that publicity will actually help him, if he is tried in Seminole County.

Their opinion of Seminole County jurors must be disrespectful and low, isn’t it?

I think a possible solution, assuming Zimmerman is acquitted, may be a federal prosecution against him, and possibly others, for a federal hate-crime violation.

Think Rodney King, for example.

I’m going to do a little research on this and post an article in a few hours.

* * *

I’m back.

Welcome to the Practical-Impossibility Test.

What’s that, you ask?

Ask and you shall receive.

The Florida Court of Appeals addressed this issue in Sailor v. State, 733 So.2d 1057 (!999).

Sailor and three others were indicted in in Gadsden County for first degree murder and attempted first degree car jacking. The trial court severed their cases for trial.

Sailor was tried four times before he was finally convicted of manslaughter. The first three trials ended with hung juries. After the first two ended in mistrals, the prosecution asked the court to change venue (try the case in another county), but the trial court denied the motion. The prosecution then reduced the murder 1 charge to murder 2 so that it could prosecute Sailor with a 6-person jury, instead of a 12-person jury. But alas, the strategy did not work as the trial ended in yet another hung jury.

The Court of Appeals recounts what happened next:

After the third mistrial, the state again moved for a change of venue, alleging substantial media coverage of each mistrial (as well as of the co-defendants’ trials), and that a large portion of the population of Gadsden County had prejudged Mr. Sailor’s guilt or innocence.   Over defense objection, the trial court granted the state’s second motion for change of venue.

Mr. Sailor then petitioned this court for a writ of certiorari in an effort to prevent the transfer, and we concluded that

the trial court’s action in granting the state’s motion for change of venue without conducting an exhaustive effort to empanel a jury in Gadsden County was premature and constitutes a departure from the essential requirements of law.   See Beckwith v. State, 386 So.2d 836 (Fla. 1st DCA), review denied, 392 So.2d 1379 (Fla.1980).   Accordingly, the petition for writ of certiorari is granted, the trial court’s amended order transferring venue is quashed, and the matter is remanded to the Circuit Court in Gadsden County for further proceedings. Sailor v. State, No. 97-3798 (Fla. 1st DCA Oct. 17, 1997).

Not bad, but not good enough.

On remand, the trial court made its first effort after the third mistrial to empanel a jury, an effort that all but succeeded.

Starting with a jury pool of fifty-eight, the trial court ended up with five of the six jurors needed.   Before voir dire, the trial court excused fourteen potential jurors. The trial court excused an additional twenty-six jurors for cause after voir dire, leaving eighteen potential jurors on the venire.

The trial court allowed each side ten peremptory challenges.   Once the defense exercised four peremptory challenges and the state exercised nine peremptory challenges, only five jurors remained.   Mr. Sailor declined to accept a five-person jury, and the trial judge declared a mistrial, without ordering enforcement of any of the outstanding jury summonses  or making any other attempt to seat another juror.

(Emphasis supplied)

Note the italicized material, as it is significant.

Meanwhile, back in the jungle:

Of four attempts to seat juries in this case, three proved successful.   Before the first degree murder charge was dropped, fourteen jurors were reportedly selected for the first trial and thirteen jurors were reportedly selected for the second trial.   Like the pending retrial, the third trial only required a six-person jury, and the trial court could have seated five jurors this time.

This record does not establish that the court made an “exhaustive attempt” to seat a jury before declaring a mistrial or that additional effort would not have proven successful.   See Rhoden, 179 So.2d at 607 (reversing grant of a change of venue over defense objection where the trial court exhausted the venire in selecting five jurors).

Help, get me out of this freakin’ wilderness! What’s that rule, again?

Once upon a time a very long time ago, in  Ashley v. State, 72 Fla. 137, 72 So. 647, 648 (1916), the Florida Supreme Court held:

Where an application in a criminal prosecution for a change of venue from the county where the crime was committed is made by the prosecuting attorney, and the accused objects thereto, the matter should be tested in some way so as to make it to clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county.

And there you have it. Judge Nelson must deny a prosecution motion for a change of venue, unless it would be “practically impossible” to seat a fair and impartial jury in Seminole County. Assumptions or presumptions wold not suffice. She would have to try, try, and try again.

BTW, the trial court eventually seated a 6-person jury in the Sailor case and it found him guilty of manslaughter without a firearm and attempted armed car jacking. Sailor v. State, 816 So.2d 182 (Fla. 1st DCA 2004).


Zimmerman: Defense Motion for Prophylactic Sequestration of Witnesses Reaches a New Low

October 22, 2012

Brandi Kansas City posted this comment at 6:42 pm to my post titled, Zimmerman: Representing Him and the Inevitable Question: My God, What Have I Become?

She said,

“O’Mara filed this emergency motion can you tell me how it constitutes an emergency. If not would it be an example of him trying the case in the public?”

The motion is titled Emergency Motion for a Protective Order/Prophylactic Sequestration of Witnesses Prior to Defense Deposition.

My Answer

I believe this is an example of trying the case in the Court of Public Opinion because I have a problem with this motion and the way it was handled.

First, O’Mara is revealing the opinions of cops overseeing an investigation. Their opinions are irrelevant and inadmissible. The evidence is whatever it is and it alone constitutes probable cause to believe a crime was committed or it does not.

Second, revealing their opinions in a motion is an underhanded way of creating an excuse to publicize that they opposed charging Zimmerman with a crime.

Third, if they were genuinely concerned about a need to order witnesses to not collaborated with each other, they should have filed the motion under seal.

Fourth, it would have been in the best interest of the defense to have the witnesses collaborate with each other so that they all objected to filing criminal charges, but that sounds like what they were going to do anyway. Therefore, there was no need for the relief he sought in the order.

For all of these reasons, seems pretty obvious to me that the real purpose of the motion was to publicize what should have been kept private; namely, that the brass did not want to charge Zimmerman.

As so often happens with this case, however, the defense effort to publicize information backfires. It will backfire here because the evidence is so strong that it makes the brass look like a bunch of coconspirators plotting to let George Zimmerman get away with murder.

It becomes ever more clear to me with each passing day that the defense is desperately trying to publicize and thereby win this case in the Seminole County Court of Public Opinion, as opposed to the rest of the country or the world. The defense, in effect, appears to be trying to poison the well of prospective jurors, many of whom are extremely conservative, by publicizing irrelevant and inadmissible information that is calculated to appeal to White conservatives and their racist fear of Blacks.

In simple words, they want a jury with 6 KKK members determined to acquit George Zimmerman, regardless of the evidence and, if they can’t get 6 KKK members, they want 6 White conservatives with the same racist outlook and intention.

I do not want a gag order because I have a selfish desire to keep up with the case developments. A gag order would prevent that.

Nevertheless, I am increasingly concerned that the possibility for a fair and impartial jury is diminishing due to what the defense is doing. It needs to stop and the court needs to do something to make it stop. I think there are other things the court can do short of a gag order, possibly involving the use or threatened use of its contempt power, but enough is enough and the sooner the court acts, the better.

Finally, I was struck by the use of the term “prophylactic sequestration.” I am tempted to run with it and make fun of it, but I am going to resist the bait and simply condemn it as a theatrical trick to grab attention.

This is a really low class and undignified move that further lowers my opinion of the defense effort in this case.


Zimmerman: Representing Him and the Inevitable Question: My God, What Have I Become?

October 22, 2012

Brown posted this comment Sunday night at 8:31 pm:

“Correct, but what I was trying to convey was that DeeDee might not understand that he would of been justified. Let’s just say that yes TM told DeeDee that he might have to turn around and face this dude and fight him because he felt threaten. DeeDee as a young teen who doesn’t know anything about SYG, might not understand that TM would of been in the right. If you look through her eyes, she only sees TM a kid who doesn’t fight had to fight against a grown white man. Do you see how it might put her in a position of thinking that if she were to say something like that, her thought process might be, OH boy if I say that TM would be in the wrong. She doesn’t understand that the law was on his side as soon as GZ followed him.”

Although Brown’s comment is about Dee Dee, her comment also is applicable to what clients say to their attorneys. For example, I have previously stated that the Fifth Commandment mandates that lawyers should not assume that their clients tell them the truth.

Brown’s comment pinpoints one of the reasons why clients will lie to their lawyers. For example, because the client might not realize that he has a valid self-defense claim in a murder case where there were no eyewitnesses (or he fears that no one will believe him if he tells the truth), the client might tell the lawyer that he was at a family BBQ when the death occurred. This is a false alibi defense that he also might have provided to the police.

Now let us assume that you are the lawyer and your reliable investigator, Paul Drake, has interviewed everyone who was present at the family BBQ and no one recalls your client being there until a couple of hours after the victim was killed. In other words, your client had plenty of time to kill the victim and get to the BBQ before the witnesses saw him.

You decide to confront your client. Lawyers often refer to these confrontations as a “come-to-Jesus moment.”

After telling your client that his alibi defense is not going to work, he tells you what really happened. You realize that he is describing a situation that constitutes self-defense under the SYG law in your jurisdiction.

Let us say this happens mid-trial after the prosecution rests its case and now it’s time for the defense to go forward.

Now what do you do?

In Nix v. Whiteside, 475 U.S. 157 (1986), the SCOTUS considered a similar fact situation. The Court held that the Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial.

In a unanimous opinion written by Chief Justice Berger, the SCOTUS said:

Page 475 U. S. 160

I
A

Whiteside was convicted of second-degree murder by a jury verdict which was affirmed by the Iowa courts. The killing took place on February 8, 1977, in Cedar Rapids, Iowa. Whiteside and two others went to one Calvin Love’s apartment late that night, seeking marihuana. Love was in bed when Whiteside and his companions arrived; an argument between Whiteside and Love over the marihuana ensued. At one point, Love directed his girlfriend to get his “piece,” and at another point got up, then returned to his bed. According to Whiteside’s testimony, Love then started to reach under his pillow and moved toward Whiteside. Whiteside stabbed Love in the chest, inflicting a fatal wound.

Whiteside was charged with murder, and when counsel was appointed, he objected to the lawyer initially appointed, claiming that he felt uncomfortable with a lawyer who had formerly been a prosecutor. Gary L. Robinson was then appointed, and immediately began an investigation. Whiteside gave him a statement that he had stabbed Love as the latter “was pulling a pistol from underneath the pillow on the bed.” Upon questioning by Robinson, however, Whiteside indicated that he had not actually seen a gun, but that he was convinced that Love had a gun. No pistol was found on the premises; shortly after the police search following the stabbing, which had revealed no weapon, the victim’s family had removed all of the victim’s possessions from the apartment. Robinson interviewed Whiteside’s companions who were present during the stabbing, and none had seen a gun during the incident. Robinson advised Whiteside that the existence of a gun was not necessary to establish the claim of self-defense, and that only a reasonable belief that the victim had a gun nearby was necessary, even though no gun was actually present.
Until shortly before trial, Whiteside consistently stated to Robinson that he had not actually seen a gun, but that he was

Page 475 U. S. 161

convinced that Love had a gun in his hand. About a week before trial, during preparation for direct examination, Whiteside for the first time told Robinson and his associate Donna Paulsen that he had seen something “metallic” in Love’s hand. When asked about this, Whiteside responded:

“[I]n Howard Cook’s case, there was a gun. If I don’t say I saw a gun, I’m dead.”

Robinson told Whiteside that such testimony would be perjury, and repeated that it was not necessary to prove that a gun was available, but only that Whiteside reasonably believed that he was in danger. On Whiteside’s insisting that he would testify that he saw “something metallic,” Robinson told him, according to Robinson’s testimony:

“[W]e could not allow him to [testify falsely], because that would be perjury, and, as officers of the court, we would be suborning perjury if we allowed him to do it; . . . I advised him that, if he did do that, it would be my duty to advise the Court of what he was doing, and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony.”
App. to Pet. for Cert. A-85. Robinson also indicated he would seek to withdraw from the representation if Whiteside insisted on committing perjury. [Footnote 2]

Whiteside testified in his own defense at trial, and stated that he “knew” that Love had a gun, and that he believed Love was reaching for a gun, and he had acted swiftly in self-defense. On cross-examination, he admitted that he had not

Page 475 U. S. 162

actually seen a gun in Love’s hand. Robinson presented evidence that Love had been seen with a sawed-off shotgun on other occasions, that the police search of the apartment may have been careless, and that the victim’s family had removed everything from the apartment shortly after the crime. Robinson presented this evidence to show a basis for Whiteside’s asserted fear that Love had a gun.

The jury returned a verdict of second-degree murder, and Whiteside moved for a new trial, claiming that he had been deprived of a fair trial by Robinson’s admonitions not to state that he saw a gun or “something metallic.” The trial court held a hearing, heard testimony by Whiteside and Robinson, and denied the motion. The trial court made specific findings that the facts were as related by Robinson.
The Supreme Court of Iowa affirmed respondent’s conviction. State v. Whiteside, 272 N.W.2d 468 (1978). That court held that the right to have counsel present all appropriate defenses does not extend to using perjury, and that an attorney’s duty to a client does not extend to assisting a client in committing perjury. Relying on DR 7-102(A)(4) of the Iowa Code of Professional Responsibility for Lawyers, which expressly prohibits an attorney from using perjured testimony, and Iowa Code § 721.2 (now Iowa Code § 720.3 (1985)), which criminalizes subornation of perjury, the Iowa court concluded that not only were Robinson’s actions permissible, but were required. The court commended “both Mr. Robinson and Ms. Paulsen for the high ethical manner in which this matter was handled.”

B

Whiteside then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa. In that petition, Whiteside alleged that he had been denied effective assistance of counsel and of his right to present a defense by Robinson’s refusal to allow him to testify as he had proposed. The District Court denied the writ. Accepting the state trial court’s factual finding that

Page 475 U. S. 163

Whiteside’s intended testimony would have been perjurious, it concluded that there could be no grounds for habeas relief, since there is no constitutional right to present a perjured defense.
The United States Court of Appeals for the Eighth Circuit reversed and directed that the writ of habeas corpus be granted. Whiteside v. Scurr, 744 F.2d 1323 (1984). The Court of Appeals accepted the findings of the trial judge, affirmed by the Iowa Supreme Court, that trial counsel believed with good cause that Whiteside would testify falsely, and acknowledged that, under Harris v. New York, 401 U. S. 222 (1971), a criminal defendant’s privilege to testify in his own behalf does not include a right to commit perjury. Nevertheless, the court reasoned that an intent to commit perjury, communicated to counsel, does not alter a defendant’s right to effective assistance of counsel, and that Robinson’s admonition to Whiteside that he would inform the court of Whiteside’s perjury constituted a threat to violate the attorney’s duty to preserve client confidences. [Footnote 3] According to the Court of Appeals, this threatened violation of client confidences breached the standards of effective representation set down in Strickland v. Washington, 466 U. S. 668 (1984). The court also concluded that Strickland’s prejudice requirement was satisfied by an implication of prejudice from the conflict between Robinson’s duty of loyalty to his client and his ethical duties. A petition for rehearing en banc was denied, with Judges Gibson, Ross, Fagg, and Bowman dissenting. Whiteside v. Scurr, 750 F.2d 713 (1984). We granted certiorari, 471 U.S. 1014 (1985), and we reverse.

I believe The SCOTUS decision in Nix v. Whiteside can be distinguished from the facts in my hypothetical because of the lack of certainty that the client intended to commit perjury.

This distinction is important as it helps to define the boundary between a lawyer’s duty to provide effective assistance of counsel to his client and his ethical and legal obligation not to assist the client to commit perjury to beat the charge.

Criminal defense attorneys routinely navigate close, but not too close, to the land of perjury.

Many times they do not want to know the truth and you should take that into account when you hear Mark O’Mara or any other criminal defense attorney speak about a case.

This is why I say that a criminal defense attorney should never judge his client. That responsibility is assigned to judges and juries.

But sometimes, you cannot help it and therein lies the rub as well as the doubt and the inevitable question:.

My God, what have I become?


Zimmerman: Dee Dee, Show Don’t Tell and The Importance of Listening

October 21, 2012

Whonoze asked the following question that I believe warrants a lengthy response, as it touches on a number of important issues about this case and lawyers in general.

He said,

Prof. L.:

If you were Zimmerman’s attorney, how would you handle the segment of DeeDee’s interview with BdlR in which, as I put it, “she offers to perjure herself.” Please review that segment of the recording. At ~15:51 into the interview, BdlR asks DeeDee if Trayvon said the man was coming to hit him just before the confrontation.

DeeDee: [very quietly] Yeah. You could say that.
SA d l R: I don’t want you to guess. Did he ever say that?
DeeDee: [after long pause, still quietly] How he said it, he just…
SA d l R: [interrupting] No, no. Do you understand? Did he say that or not? If he didn’t, that’s alright…
DeeDee: The man, he got problems. Like he crazy.
SA d l R: Trayvon told you that?
DeeDee: Yeah the man lookin crazy. Looking at him crazy.
SA d l R: When did Trayvon tell you that?
DeeDee: …He was walkin, before he say he was gonna run….
SA d l R: He said the guy looks what?
DeeDee: Crazy. And creepy.

Thus, despite BdlR’s admonition, DeeDee never says anything amounting to “No, Trayvon did did not say that,” but instead goes back to an earlier point in the conversation to bolster her assertion that Trayvon was afraid of Zimmerman.

Now, I do not care how anywhere here interprets this passage, or how they think it speaks to DeeDee’s overall veracity. I know that (and I mostly agree). But we are not going to be sitting on a jury in Seminole County FL, and we are not defense attorneys with an ethical obligation to present a zealous defense of George Zimmerman.

So, first, I would like an experienced defense attorney to role-play, evaluate this part of DeeDee’s statement to BdlR from a defense point of view, and imagine how you might use it at trial (if at all.)

Second, role playing a prosecutor, how would you prep DeeDee in anticipation of any strategies you think the defense might take?

My Answer:

I honestly do not believe Dee Dee offered to perjure herself in that exchange.

This appears to be a classic example of a witness having formed an opinion of what was happening in those final moments before the phone went dead. She’s struggling with attempting to differentiate between her opinion and what she actually heard Trayvon say or not say.

Thus, when “BDLR asks her if Trayvon said the man was coming to hit him just before the confrontation,” she answers

DeeDee: [very quietly] Yeah. You could say that.

BDLR picks up on her apparent uncertainty and says,

“I don’t want you to guess. Did he ever say that?”

She resists being pinned down to a “yes” or “no” answer because her opinion is based on more than what Trayvon said or did not say in those final moments.

For example, she knows Trayvon is a non-violent person who would never pick a fight with anyone and he had been expressing fear and describing strange, creepy and aggressive behavior to explain why he felt that way. She’s reviewing all of that preparing to tell him why she believes all of it can be summarized and expressed as a “Yes” answer to his question. In other words, she wants to supply context because context, rather than what he actually said or did not say in that final moment before the line went dead, answers the question everyone is asking.

She says,

“DeeDee: [after long pause, still quietly] How he said it, he just…

BDLR, who is not warm and fuzzy and lacks patience and an ability to listen, doesn’t “hear” what she is telling him. He interrupts.

“SA d l R: [interrupting] No, no. Do you understand? Did he say that or not? If he didn’t, that’s alright…”

Now, she realizes he doesn’t get it, so she tries to summarize it all by saying the man was crazy. She says,

“DeeDee: The man, he got problems. Like he crazy.”

BDLR is basically a bull in a china shop and he needs to develop some people skills.

Lawyers have an expression for context. We call it “totality of the circumstances.”

Story tellers have a rule for telling stories that they call “Show, don’t tell.”

Someone with some patience and listening skills needs to spend some time with her and tease out all of the specifics that she was attempting to identify and sort out before BDLR started pressuring her for a “yes” or “no” answer.

When she testifies, he needs to ask her to relate those specifics to the jury and leave out her opinion. What the hell does he expect her to say, when she wasn’t actually there and can only rely on what Trayvon told her and who she knew him to be?

Most of what Trayvon said to her, is admissible hearsay pursuant to the excited-utterance and present-sense-impression exceptions to the hearsay rule The rest is admissible non-hearsay because it will be offered to show his mental state, as opposed to being offered to prove the truth of the matter asserted in the statement.

BDLR needs to let her show, not tell.

When the defense inevitably attempts to pin her down on cross with the “yes” or “no” answer that BDLR asked, the jury will already have figured out what happened from the context that she supplied by showing rather than telling.

Her denial that Trayvon told her Zimmerman attacked him immediately before the line went dead becomes irrelevant because the jury, everyone else in the courtroom, and the world watching on TV will know that Trayvon did not have an opportunity to say anything when Zimmerman attacked him.

I used to spend a lot of time listening before I decided to do anything. It’s a good practice to develop and I do not believe very many lawyers have developed that skill.

BDLR seriously needs to spend some time working on it because he can be a hot mess without it.


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