Open Thread for Saturday, January 26, 2013

January 26, 2013

Welcome to the open thread.

We have three posts today:

1. The Defendant’s Statements will be Admissible by the Prosecution in the Trayvon Martin Murder Case;

2. Featuring: LLMPapa Delivers a Knockout Punch; and

3. Call for DNA Testing for Death Row Inmate Larry Swearingen.

Use this open thread for comment and discussion regarding other topics.


Call for DNA Testing for Death Row Inmate Larry Swearingen

January 26, 2013

Barry Scheck is an honored friend and hero. He has issued this call, which I fully support:

Sign-on to our letter to District Attorney Brett Ligon

Larry Swearingen is scheduled to be executed by the state of Texas on February 27. He has always maintained his innocence of the 1998 murder of a 19-year-old college student and has been requesting DNA testing of crime scene evidence that could exonerate him for years (read more). In 2011, the Texas Legislature specifically amended their DNA testing statute to address shortcomings in the law that had been used to deny Swearingen the ability to test evidence.

With his execution date looming, there is simply no room for doubt and no reason not to test this evidence. Sign-on to our letter to Montgomery County District Attorney Brett Ligon asking ask him to postpone the execution and consent to DNA testing of the evidence in Larry Swearingen’s case.

Please go to the Innocence Project website to fill out and send your letter requesting DNA testing.

Thank you,

Fred


The Defendant’s Statements will be Admissible by the Prosecution in the Trayvon Martin Murder Case

January 26, 2013

Saturday, January 26, 2013

I predict the defendant’s statements to police will be admissible against him at his immunity hearing and his trial.

The legal test will be whether he knowingly, intelligently and voluntarily waived his rights to remain silent and submit to police interrogation without counsel present. The SCOTUS established this test in Miranda vs. Arizona, 384 U.S. 436 (1966).

The defendant gave multiple statements to police investigators. Each statement was videotaped.

Before answering any questions, he reviewed, initialed and signed the standard form acknowledging that he had been advised of his rights to remain silent and to have an attorney present while being questioned and his decision to waive those rights and submit to questioning.

There is no evidence on the videotapes that the police confronted, threatened or intimidated him in any way and they permitted him to go home after interviewing him the first night. Moreover, there is no evidence that they used any trick, lie or ruse to get him to talk. Therefore, his statements will be admissible pursuant to Miranda.

Some of you have commented that his attorneys might move to suppress his statements on the grounds that he suffered from post traumatic stress disorder (PTSD) and he had been diagnosed with attention deficit hyperactivity disorder (ADHD) for which he was taking Adderall.

These mental disorders normally do not prevent a person from knowing that police are about to question them regarding their possible guilt in committing a crime and they have a right to refuse to answer any questions or insist on having a lawyer present during questioning. So long as they understand what they are being told, they can agree to waive those rights and submit to questioning. Absent persuasive evidence to the contrary from a duly qualified mental health expert, PTSD and ADHD would not prevent a person from knowingly, intelligently and voluntarily waiving those rights.

The defense has not filed a motion to suppress the defendant’s statements and I am not expecting such a motion.

Since the prosecution will want to use the defendant’s statements to prove his guilt, you might see BDLR file a motion asking the Court to rule that he can do that. To win the motion, he will have to convince Judge Nelson that the defendant’s statements were knowingly, intelligently and voluntarily made after advice and waiver of Miranda rights. Lawyers refer to this procedure as laying a proper foundation for the admissibility of the statements.

For the reasons I have stated, I expect Judge Nelson will grant the prosecution motion. The defense either will have no objection or its objection will be overruled (i.e., denied).

Keep in mind that the prosecution can introduce any of the defendant’s statements as admissions by a party opponent, but the hearsay rule prevents the defense from introducing any of them.


Featuring: LLMPapa Delivers a Knockout Punch

January 26, 2013

Saturday, January 26, 2013

With his latest video, LLMPapa perfectly illustrates the principle that less is more.

Behold a knockout punch in 52 seconds.


The Defendant in the Trayvon Martin Murder Case Has a Constitutional Right to Defend Himself

January 25, 2013

Friday, January 25, 2013.

I believe there is a good possibility that the defendant in the Trayvon Martin murder case is extremely unhappy with his lawyers. I think he expected his case would be over by now and he would be a free man awash in millions of dollars from civil suits against his accusers and set for a life of leisure. Give what some lawyers said about his case, one can understand why he might have felt that way.

I disagreed with their opinions, but I may have been in the minority at that time — before Angela Corey charged the defendant with murder in the second degree. The subsequent release of evidence has confirmed my initial opinion and I suspect most lawyers now agree that the defendant has little chance to prevail.

Nevertheless, he had high expectations when he selected Mark O’Mara to represent him and his case has gone downhill ever since. He has only himself to blame for that. Basically, he could not keep his mouth shut and every time he opened it, he said something that hurt his case.

He appears to believe that he can outsmart anyone and lie his way out of any trouble. While that might have worked for him in the past, it’s certainly not working for him now. To put it crudely, he’s pissing with big dogs now and failing to impress.

He does not seem to be the sort of person who would admit mistakes and accept responsibility for their consequences. Instead, I suspect he blames his lawyers for his present circumstances.

As I pointed out in yesterday’s article, What Happens if the Defendant Claims Indigence and his Lawyers Ask to Withdraw? his lawyers could attempt to withdraw or he can attempt to fire them and replace them with a new team, assuming he has the money to do so. If he does not, he could plead poverty and ask the court to find him indigent and appoint new counsel.

He has a big problem, however. He might be able to change the lawyers, but he cannot change the facts.

In situations like this, I have occasionally seen a defendant insist on representing himself

In Faretta vs. California, 422 U.S. 806, 806 (1975), the SCOTUS held:

The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. This clear constitutional rule has emerged from a series of cases decided here over the last 50 years.[1] The question before us now is whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated another way, the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense. It is not an easy question, but we have concluded that a State may not constitutionally do so.

This defendant would be ill advised to represent himself because he has demonstrated that he is not very smart and he does not know the law.

Can a defendant who lacks intelligence and does not know the law and the rules of evidence “voluntarily and intelligently” elect to waive his Sixth Amendment right to counsel and represent himself?

Justice Potter Stewart, who wrote the majority opinion, answered that question:

It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” Illinois v. Allen, 397 U. S. 337, 350-351 (BRENNAN, J., concurring).[46]

Faretta, at 834.


Featuring: LLMPapa’s New Video About Changes

January 25, 2013

Our beloved LLMPapa returns to center stage with yet another video that will have the defense team digging for the Rolaids.

Cross examining the fogen is a trial lawyer’s wet dream.


Open Thread: January 24, 2013

January 24, 2013

Welcome to the open thread for Thursday, January 24, 2013.

I posted one article today: What Happens if the Defendant Claims Indigence and his Lawyers Ask to Withdraw?

Use this open thread for comment and discussion regarding other topics.


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