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

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

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

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

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

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

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?

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).