Zimmerman: LLMPapa is in the House with An Attorney’s Tightwire

October 21, 2012

LLMPapa posted a new vid in a comment early this morning that perfectly captures the plight of the criminal defense attorney. I dedicate this post to him and all the fine work he has done on the Zimmerman case.

I also recommend it to all of my brothers and sisters at the National Association of Criminal Defense Lawyers (NACDL) who have labored so long and hard for their clients under the most difficult of circumstances and been in this situation countless times.

With love and respect to all of you.

Fred

Cross Posted at Firedoglake and The Smirking Chimp.

Musical accompaniment: Tightrope performed by Leon Russell


Zimmerman: The Defense Subpoenas for School Records and Social Media Accounts Were Proper

October 20, 2012

Diary of a Successful Loser posted the following comment last night after I went to bed. It raises several important issues, so I have seized it as an opportunity for yet another teaching moment.

” At times I get the feelings that O’Mara really does not believe in GZ’s innocence. He mentioned being accused of digging up stuff on Trayvon and countered that with GZ’s Constitutional rights to have a lawyer try his best. I have yet to hear O’Mara say that he really and honestly believes in GZ.”

You will rarely hear a lawyer say that on behalf of any client because lawyers are not supposed to judge their clients or vouch for them. They have a duty to represent each client zealously to the best of their ability, whether the client is innocent or guilty.

Absence of vouching for the innocence of a client should never be interpreted as evidence that the lawyer believes his client is guilty.

If I were representing Zimmerman, I would have asked for the same stuff he’s asking for.

Look at it this way.

Assume GZ were convicted of murder 2 and O’Mara had not presented any character evidence that TM was kown to be an MMA-style fighter and aggressive bully who picked fights. As I have stated elsewhere, such character evidence would have been admissible regarding who was the aggressor.

Let’s put aside and forget for the moment that introducing evidence of that pertinent character trait would open the door to allow the State to present evidence that Zimmerman was an aggressive bully.

Further assume that O’Mara had not subpoenaed TM’s school records and they did contain evidence that TM was an MMA-style fighter and aggressive bully who picked fights. I do not believe this is true, but let’s assume that it is for purposes of this teaching moment.

Zimmerman would have a great ineffective assistance of counsel argument against O’Mara that could result in the case being reversed and remanded for a new trial.

The Sixth Amendment established the right to effective assistance of counsel. The SCOTUS defined what constitutes effective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984).

The Strickland test is a two-part test that basically establishes a minimal standard of performance that a lawyer must provide to comply with the Effective-Assistance-of-Counsel Clause of the Sixth Amendment. If a lawyer’s level of performance (1) falls below this minimal standard and (2) the lawyer’s error is so deficient as to undermine confidence in the outcome, a reviewing court must undo the damage. If the outcome was a guilty verdict by a jury, the case must be reversed and remanded for a new trial.

Wikipedia has a good summary:

The Supreme Court began its decision with the idea that the Sixth Amendment right to counsel “exists, and is needed, in order to protect the fundamental right to a fair trial.” A fair trial is one in which “evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Criminal defendants require counsel’s skill and knowledge in order to be able to successfully rebuff the State’s attempt to imprison or execute them. Accordingly, the Court has ruled that counsel must be appointed for criminal defendants if they cannot afford to hire their own counsel. But the fact that “a person who happens to be a lawyer is present at trial alongside the accused… is not enough to satisfy the constitutional command.” Counsel must play the role in the adversarial system that allows the system to produce just results. Hence, the right to counsel is the right to the effective assistance of counsel.

A claim that counsel was ineffective, then, has two components. First, the defendant must show that counsel’s performance was “deficient,” such that counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Second, this deficient performance must be so serious as to deprive the defendant of a fair trial. Without these two showings, “it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”

In order to show that counsel’s performance was “deficient,” the defendant must show that it fell below an “objective standard of reasonableness.” The legal profession is capable of maintaining standards that justify the law’s presumption that counsel ordinarily serves his function in the adversary system. This includes such basic duties as assisting the defendant and showing him undivided loyalty by representing him unburdened by any conflict of interest. Counsel should advocate the defendant’s case, consult with the defendant on the important decisions and keep him informed of important developments in the course of the prosecution. But these basic duties do not serve as a “checklist” for counsel, for “no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Counsel must have “wide latitude” to make “reasonable tactical decisions,” lest the requirements for constitutionally effective assistance distract counsel from “the overriding mission of vigorous advocacy of the defendant’s cause.” Judges who evaluate ineffective assistance claims should, in turn, be highly deferential to counsel’s decisions and avoid scrutinizing them in hindsight. Harsh scrutiny would encourage the proliferation of ineffective assistance claims and “dampen the ardor and impair the independence of defense counsel.”

A criminal defense attorney has a duty to investigate a case. This duty usually includes hiring an investigator to locate and interview witnesses. In a case like this, it also includes hiring consulting experts in police procedures and forensics to review what the police did and to evaluate the procedures used and the results obtained by crime lab personnel testing evidence in the case.

More pertinent to our discussion, the duty to investigate includes subpoenaing records that may contain relevant information or that might reasonably be expected to lead to the discovery of relevant information, unless those records have been provided in discovery.

O’Mara’s decision to subpoena school records and social media accounts (Facebook and Twitter) is something I would have done and I expect every competent criminal defense lawyer also would have done.

Whether there is anything relevant and admissible in any of those records remains to be seen.

My concern today is that O’Mara might “inadvertently” publish the records on his website, whether they contain relevant information or not. The records are protected by privacy statutes because he is a juvenile, they contain private information about him and they are supposed to remain private, even after they are turned over to O’Mara. He certainly knows he should not publish them on his website or release them to the media, and he would have some serious ‘splainin’ to do, if he does. The my-secretary-did-it card is practically unavailable because the State has already played it.

Recall that the State published Zimmerman’s woeful junior college records in violation of his right to privacy and quickly acknowledged and apologized for the “clerical mistake.”

The apology did not unring the bell, of course, and now the world knows Zimmerman was a failing student.

Inexplicably adding to Zimmerman’s woes, O’Mara failed to make a sufficiently specific and timely objection to the State’s release of W9’s statements claiming that Zimmerman had molested her for a 10-year period beginning when she was 6-years-old and he was 8-years-old.

In my professional opinion, O’Mara’s failure, although obviously unintentional, was a clear violation of the objective standard of care that a lawyer should provide to his client under Strickland v. Washington. Whether it turns out to be material to the outcome of this case remains to be seen.

If Zimmerman is convicted by a jury and a reviewing court decides that O’Mara’s error materially affected the outcome of the trial, the conviction would be reversed and the case remanded for a new trial.

Since I identified and commented on his miscue at the time, I think it’s only fair that I approve of his use of subpoenas, as it is something I would have done.

To be clear, I do not believe he will find the information that he is looking for. Nevertheless, I believe he is entitled to look for it.

I hope this clarifies the legal issues regarding the subpoenas.


Zimmerman: Lawyers Lawyers Everywhere — Important Hearing Today at 1:30 pm EDT

October 19, 2012

Lawyers for prosecution, defense and various news media organizations will be in court this afternoon before Seminole County Circuit Court Judge Debra Nelson to argue about various discovery related issues in the Zimmerman case. This should be interesting, so you may want to pay attention.

The always reliable and accurate Frances Robles of the Miami Herald has the breakdown:

Assistant State Attorney Bernie de la Rionda filed papers Thursday in Seminole County Circuit Court asking a judge to muzzle defense attorney Mark O’Mara, whom the prosecutor accuses of taking to the Internet to try his case in the media.

“Unless defense counsel stops talking to the media about the case, in person or by use of defendant’s website, it will (be) more difficult to find jurors who have not been influenced by the media accounts of the case,” de la Rionda said. ” … An impartial jury could never be seated.”

De la Rionda asked Circuit Judge Debra Nelson to issue a gag order, which would silence the defense, prosecutors, law enforcement and any of the lawyers’ employees. If the judge agrees, lawyers and investigators would not be allowed to make any statements outside the courtroom about the case, evidence, credibility of witnesses or possible sentences. If the judge allows it, they would even be kept from opining about Zimmerman’s guilt or innocence.

I am not surprised by the State’s motion. The defense has been trying its case in the Court of Public Opinion for months now and the prosecution has at long last run out of patience.

Of course, the prosecution has benefited more than the defense from this strategy. After all, who can forget George Zimmerman’s appearance on the Sean Hannity Show. His smirks, denial of regret, and shifting of responsibility for Trayvon Martin’s death onto God Almighty Himself has to be one of the greatest moments in network television history for this still young second decade.

Although there may still be more gold to be mined in the proverbial “them thar hills,” I think the prosecution comprehends the notion of diminishing returns and wants to cash-in its winnings and move on to other pleasantries of a somewhat more formal nature.

The defense and media lawyers will be objecting to the motion and I do not expect Judge Nelson will seriously consider granting it. Florida’s Sunshine Law is an impressive barrier to a gag order. I predict she will deliver a sternly worded rebuke to defense counsel and we shall see what we shall see.

Judge Nelson also will be hearing argument concerning the defense request to subpoena Trayvon Martin’s middle school and high school records. The State objects to the request on the grounds that the information in the records, whether good or bad, is protected from disclosure by privacy statutes and it would be irrelevant and inadmissible at trial. Prosecutor Bernie de la Rionda called it a “fishing expedition.”

As I have said before, I believe the rules of evidence permit the defense to introduce evidence of a pertinent character trait in support of Zimmerman’s claim that Martin was the aggressor. For example, if Trayvon Martin was known to be an aggressive bully who started fights, the defense would be permitted to bring that out at trial. Specific acts of misconduct would not be admissible, however. The defense would be limited to introducing the evidence as a character trait. Assuming such evidence exists, which I doubt, it might be in the school records. Therefore, I believe the defense has a legitimate reason to want to review the records.

The problem is that the defense may post Martin’s records on its website, regardless whether they contain any reference to misconduct of any kind, whether admissible or not. The State already did that with George Zimmerman’s school records and has apologized for doing so, claiming it was a clerical mistake. Now it seeks to prevent the defense from administering a dose of what’s good for the goose is good for the gander.

There is a solution to this sort of problem and I have previously recommended it. It’s called in camera review. No, it does not involve a camera. In camera review is a legal term that means in chambers. That is, the school records would be filed under seal and Judge Nelson would review them in her chambers and decide whether they contain evidence the defense has a right to review. She discloses it to both sides, if they do. Presumably, she also would order both sides not to publicize the records and might even threaten to hold them in contempt of court, if they were to violate the order.

As I said, I doubt the records contain the information that the defense has a legitimate reason to seek, so this dispute will likely be more like a proverbial tempest in a teapot. If there is any substance to it, there is a solution to deal with the records and protect privacy that has worked in the past.

The State also wants Judge Nelson to order the defense to file its requests for subpoenas in the future under seal so that it cannot publicize them on its website before submitting them for the court’s approval. This argument is part of the prosecution’s strategy to stop the defense from trying its case in the Court of Public Opinion.

This is another issue that Judge Nelson can handle with a stern warning and threat to use her contempt powers. I predict she will do so rather than establishing a special rule for O’Mara, as opposed to all other defense counsel, when seeking court approval for subpoenas.

The prosecution also is seeking George Zimmerman’s medical records at the clinic where he sought a permission-to-return-to-work authorization the day after the shooting. The defense objects on privacy grounds. I think the defense likely waived doctor-patient privilege and privacy concerns when it released a portion of his records and has intimated that his ADHD condition might explain some of his inconsistencies.

Finally, there is an interesting issue about the discoverability of Trayvon Martin’s social media accounts (Facebook and Twitter). A lawyer representing Facebook has refused to comply with the subpoena.

Once again, here’s Frances Robles,

On Monday, Facebook lawyers sent a letter to O’Mara vowing to fight the subpoena. Martin’s social-media account, Facebook attorney Furqan Mohammed said, is not only irrelevant to the case, but by law cannot be released. Mohammed said federal law protects the account information, and added that arguing the issue would have to be done in a California court.

“We think the attorneys for Facebook are essentially saying the same thing we have been saying all along: Trayvon’s Facebook and social media are completely irrelevant,” said Benjamin Crump, an attorney for Martin’s family. “All of these issues are distractions that take the focus off George Zimmerman.”

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Zimmerman: Trial Date Set For June 10, 2013

October 17, 2012

Judge Debra Nelson set the trial date for June 10, 2013. The attorneys estimate the trial will last three weeks with jury selection taking more time the trial itself.

He is charged with murder second degree.

Defense counsel have been busy this week deposing prosecution witnesses. They will be back in court on Friday for a hearing regarding discovery issues, including the defense request for subpoenas for Trayvon Martin’s middle and high school records. The prosecution is objecting to the subpoenas on the grounds that the information sought is confidential and would be irrelevant and inadmissible at trial.

No trial date has been set yet for Shellie Zimmerman. She is charged with perjury allegedly committed at his bond hearing.


Open Thread: Presidential Debate, Round 2 (Romney v. Obama)

October 16, 2012

Thought you all might want to discuss this here as it goes along.

http://www.youtube.com/politics?feature=inp-hp-ype-26


Zimmerman: Conspiracy and Coconspirator Liability for Crimes Committed by a Member of the Conspiracy

October 16, 2012

Lonnie Starr has been discussing the possibility of others being involved with George Zimmerman in a conspiracy to detain and possibly kill a suspected residential burglar.

Here is a brief discussion of general conspiracy law and the potential liability of coconspirators for a murder committed by a member of the conspiracy.

A conspiracy is an agreement by two or more people to commit a specific crime.

Assuming for the sake of argument that there was a conspiracy, liability would depend on the purpose of the conspiracy.

If it were to kill, then the appropriate charge would be conspiracy to commit murder and all members of the conspiracy would be charged with that offense as well as the murder itself.

If it were to detain a suspect for arrest by a police officer, conspiracy to commit murder would not be an appropriate charge.

However, if the objective of the conspiracy were a crime, which it would be if it were to detain someone because that would be an assault, battery and possibly an involuntary detention or a kidnapping, and a killing were a reasonably foreseeable consequence, as would be the case if the plan included the use of a gun to detain a person, then all of the coconspirators could be held responsible for the murder.

The legal rule is coconspirators can be held responsible for the crimes committed by other members of the conspiracy in furtherance of the conspiracy, even if they did not know about those crimes and never consented to them, so long as the crimes were a reasonably foreseeable consequence of the conspiracy.

Therefore, if other people were involved with George Zimmerman in a conspiracy to detain suspected burglars for arrest by police officers and they knew he was armed with a gun and intended to use it, they could be charged and convicted of murder as coconspirators, even though they did not specifically intend that outcome.

If this were the case, the prosecution would have considerable power to obtain cooperation from identified coconspirators against George Zimmerman in exchange for light sentences.

At this point, however, I am not aware of sufficient evidence to charge anyone with conspiracy, despite hints that Zimmerman did not act alone.

Keep this article in mind as the case progresses.


Change For Trayvon: A New Website

October 16, 2012

Tracy Martin and Sybrina Fulton have started a new website, Change For Trayvon, that is dedicated to reviewing the Stand Your Ground laws.

The Mission Statement:

The purpose of Change for Trayvon is to give his family a voice in the political process. Your support will help engage the discussion across the country regarding stand-your-ground laws and the need to revise them so that there is required judicial or prosecutorial review before decisions are made.

We need your help to change the laws which keep parents like ourselves from finding peace. -Tracy Martin

30,000 mothers and fathers lost their children to gun violence.

The Change for Trayvon movement will shine the light on stand-your-ground laws across the nation. These laws allow individuals to shoot first and ask questions later.

For more information email us at: info@changefortrayvon.com

According to the website, 32 states now have SYG laws, including 6 states that passed SYG laws since Trayvon’s death, and proposed SYG laws are on the November ballot in 8 more states. If they pass, that will bring the total to 40 states.

I do not believe these laws are necessary. Instead of providing increased security for private individuals, I think they create a legal justification for permitting meaner instincts to kill without consequence. This is not a solution.

Before we take another step down this perilous road, we should study what this law has accomplished. When that is done, I do not believe the documented ends will justify the deadly means.


Death Penalty or Life Without Parole: Long And Slender Fingers at Easter

October 14, 2012

Some of you have asked questions about what it is like to do death penalty work. Here is an example.

James Mayfield was in a hell of a jam when I was appointed to represent him by Magistrate Judge John Weinberg of the United States District Court for the Western District of Washington. He was accused along with two others with the murders of a father and his three children on the Army base at Fort Lewis in Tacoma, WA. The father was a civilian married to a woman in the Army. They had been living on the base with their three children when she was ordered to Korea for a six-month tour. He remained behind in their house on the base with the children. The murders happened while she was in Korea.

James was a private in the Army stationed at Fort Lewis. He was a polite and beautiful young African American man from a deeply religious Southern Baptist family in Beaumont, TX. He had never been in trouble with the law before. I remember his dark eyes pooled with tears and his soft and long slender fingers when I shook his hand for the last time.

His two codefendants were civilian blood brothers from Los Angeles. They were gang members and they had moved to Tacoma to sell crack cocaine. This was during the early nineties when the LA gangs started expanding their drug distribution operations into other cities to open up new markets.

Several months after they arrived in Tacoma, officers from the Tacoma Police Department and the Pierce County Sheriff’s Department served a search warrant at their apartment seizing crack cocaine, drug paraphernalia, guns, and a substantial amount of cash. They arrested the brothers and booked them into the Pierce County Jail. Under Washington law at the time, the brothers were released 72 hours after they were booked into jail because no formal charges had yet been filed.

The brothers correctly surmised that one of their customers must have turned informant, probably after purchasing crack at their apartment. Unfortunately for the man, who was one of their customers, and his three children, the brothers concluded that he was the snitch.

I never found out how James, who was a regular church-goer at the time, hooked up with the two gangsters, but he did, and when they decided to pay the snitch a visit, they contacted James and asked him to help them get onto the base and locate the snitch’s house.

The crime scene was horrific and the bloodiest by far that I had ever seen. I will spare you the details other than to say that the brothers confessed to tying up the father in the living room and murdering each child one at a time in front of him with machetes. Then they finished him off. The feds had jurisdiction since the murders happened on the military base.

The brothers were mistaken about the father. He was not the snitch.

The case had death penalty written all over it, except no one in the U.S. Attorney’s Office and none of the federal judges in the district was pro death penalty. The Assistant U.S. Attorney assigned to the case was willing to drop the death penalty, but only if all three defendants were willing to plead guilty to all four murders.

The two brothers did not need to be persuaded to take the deal, but James balked and dug in his heels. He had no defense, but he could not bring himself to admit that he had committed such an awful crime and no amount of pleading on my part changed his mind. He had decided to go to his death proclaiming his innocence, rather than admit what he did and spend the rest of his life in prison. He did not care about the consequences of his decision on the brothers.

That left it to me to figure out a solution to save three lives, my conscience, and the consciences of the federal prosecutor and the United States District Court Judge to whom the case had been assigned.

With an extremely heavy heart, I boarded a flight to Houston by way of Minneapolis and when I arrived in Houston on Easter Sunday, I rented a car and drove to Beaumont to meet with James’s extended family.

I arrived about mid-afternoon after the family returned from church and finished their traditional Easter dinner. There were expecting me when I rang the doorbell. I was greeted by more than a dozen somber people still dressed in their Easter finery. I remember a sea of black faces young and old filled with tears, an occasional sob, and grace, incredible grace such as I had never seen before as I pulled out the investigation reports, crime scene and autopsy photographs, and the autopsy reports. The photographs of the toddler were the worst and as I finished my presentation of the evidence against James, I felt worse than I have ever felt before or since.

I convinced a loving family that their golden child had willingly participated in butchering four innocent people and he would be murdered for what he had done, unless they persuaded him to choose life over death. When I asked them, if they would be willing to help, their answers were unanimous.

“Yes.”

Two weeks later James Mayfield and the two brothers pled guilty to four homicides and were sentenced to life in prison without possibility of parole.

For the last time, I shook hands with the beautiful young man with soft long slender fingers whose life incomprehensibly went off the rails one night during a murderous rampage with those hands that neither he nor anyone else will likely ever understand.

My heart was empty and cold as he turned and walked away.

My God! What have I become? I wondered.


Zimmerman Made Race an Issue with his False Description of Trayvon Martin

October 13, 2012

The Orlando Sentinel reports today that Mark O’Mara has filed motions in the Zimmerman case seeking,

“records from the FBI, the U.S. Department of Justice, the Florida Department of Law Enforcement and local law-enforcement agencies that would reveal whether investigators found that Zimmerman was motivated by race or acted to deprive Trayvon of his civil rights.”

He claims that he filed these motions because he wants to eliminate race as an issue in this case. Apparently, he believes those law enforcement agencies have no such evidence and will admit that they do not, thereby ending speculation that George Zimmerman is a racist who profiled and killed Trayvon Martin because he is Black.

“In an unusually long blog post Wednesday, O’Mara wrote that if race is a factor in this case, it’s not because of Zimmerman — it’s because Sanford police did not make an immediate arrest.

“While it can be safely argued that it is largely the question of civil rights issues that has made the George Zimmerman case a national — and international — story, there is nothing to support the contention of racism in the Zimmerman case,” O’Mara wrote.

“… race should not be a factor in the George Zimmerman case and should never have been made one,” he concluded. “The Zimmerman defense team is not arguing against civil rights. We are defending a man who claims he shot and killed an attacker in necessary self-defense.”

O’Mara’s claim is nonsense. Race is an issue in this case because George Zimmerman made it an issue when he used a negative racial stereotype to describe Trayvon Martin in an effort to justify killing him in self-defense.

Trayvon Martin had just celebrated his 17th birthday. He was a kid walking home in the rain from an errand to a 7/11 store where he purchased Skittles and a can of iced tea. He was minding his own business talking to his girlfriend when Zimmerman spotted him and started following him first in a vehicle and then on foot. Martin panicked, ran away, and attempted to hide from him, but Zimmerman hunted him down contrary to a request by the SPD NEN dispatcher’s request. Then he shot and killed Martin during a struggle by shooting him at close range in the heart, despite knowing that police were on their way. Martin was unarmed and Zimmerman has admitted to having control of Martin with a wristlock before he pulled out his gun, aimed, and fired.

To escape legal responsibility for this murder, Zimmerman reversed the actual facts claiming that Martin hunted him down, despite having successfully eluded him, sucker-punched in the nose, and jumped on top of him raining down blows MMA-style while uttering B-movie Black gangsta-speak from the late 80s and 90s, and then he grabbed his head and repeatedly slammed it against a concrete sidewalk until he nearly lost consciousness. On the verge of losing consciousness, Zimmerman suddenly remembered he had a gun, unholstered it, and shot him to death.

Zimmerman and O’Mara ask us to believe this racist stereotype despite Zimmerman’s lack of injuries that are consistent with his description of what happened and forensic evidence that refutes it. He would have us believe that, while in mid-conversation with his girlfriend, Trayvon suddenly attacked him without bothering to arm himself with a weapon.

To believe Zimmerman, one must suspend disbelief and see Trayvon Martin as some sort of super Black gangsta that only exists in dated B movies.

Sorry, but I am not buying what O’Mara is selling. Zimmerman cannot credibly claim that he is not responsible for injecting race into this case when he is the person who is attempting to escape responsibility for murder by claiming he had to kill in self-defense because Trayvon Martin was some sort of super Black gangsta that only exists in dated B movies.

BTW, no one should hold their breath expecting “the FBI, the U.S. Department of Justice, the Florida Department of Law Enforcement and local law-enforcement agencies,” to fall over each other in an effort to tell everyone that they have concluded that George Zimmerman is not a racist. O’Mara will get the discovery to which he is entitled as it is released and no special accommodation will be made for this request.

Because I believe he should know this, I assume this is yet another effort to try his case in the court of public opinion instead of a courtroom and yet another sign that he is not ready for prime time.


Zimmerman Open Thread: Friday, October 12, 2012

October 12, 2012

Please continue your discussions about the case here.

I also have a new post up:

Zimmerman: Be Wary of the Power of Belief to Shape Perception


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