Zimmerman: The immunity hearing should not be combined with the trial

April 30, 2013

Tuesday, April 30, 2013

Good evening:

The immunity hearing should not be combined with the trial for the following reasons:

A defendant has a 5th Amendment right to remain silent throughout the trial. If the Court were to combine the trial with an immunity hearing, that would put pressure on the defendant to testify during the defense case.

Depending on how well the prosecution’s case-in-chief might have gone, the defense might be tempted after the prosecution rests to rest and not put on a defense. However, because the burden of proof in the immunity hearing is on the defense, the defendant would have to testify. This is a classic example of compelling a defendant to testify and possibly incriminate himself by doing so. The 5th Amendment expressly prohibits compelling a defendant to incriminate himself.

That would not be the case if the immunity hearing were held before trial. The defendant could testify in the immunity hearing without waiving his right to remain silent at the trial.

Another reason not to combine the two is that the order of presentation differs. The State goes first at trial, but the defense goes first in an immunity hearing. Strategy can change dramatically depending on whether a party has the burden of proof. Whether a party goes first or second will affect the evidence it will present, its choice of witnesses, and the order in which the witnesses will be called.

Finally, the purpose of an immunity hearing is to identify strong self-defense cases early on and to immunize those defendants from criminal and civil liability so that they do not have to endure the psychological and emotional wear and tear of living a life in limbo while possibly in custody for a year or more before trial. Saves the expense too for all concerned. Combining the immunity hearing with the trial cancels out all those advantages.

Finally, just because a defendant has a fundamental right to an immunity hearing does not mean that he cannot waive that right as the defendant did today.

500 people are going to be summoned to court for jury service in this case and it makes no sense to go to the time, trouble and expense to do that just because the defendant wants to wait and see how jury selection and the prosecution’s presentation of its case is going before he decides whether to seek immunity.


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Zimmerman voluntarily waived his right in court today to an immunity hearing

April 30, 2013

Tuesday, April 30, 2013

Today’s hearing was a judicial slam-down of the defense motions.

The most important thing that happened was the defendant’s waiver of the immunity hearing. After Judge Nelson placed him under oath, he acknowledged that he knew he had a right to a pretrial immunity hearing and he voluntarily waived that hearing.

In my opinion the waiver is bullet proof and will withstand appellate scrutiny.

At the press conference following the hearing, Mark O’Mara said that they had decided to waive the hearing because it would be better to let a jury decide the case. In my opinion, his explanation is pure spin designed to conceal that he knows his client’s credibility will be destroyed on cross examination. In other words, the defense has no defense.

BOTTOM LINE: He would not have waived the hearing, if he thought he had any chance to win. That overwhelming case for self-defense that O’Mara has been bragging about for almost a year is a bust. He folded when Bernie called his bluff.

Judge Nelson also ruled that the defense was not prejudiced by any of the alleged discovery violations, but she postponed consideration until after trial of whether to order the State to reimburse the defense for fees and costs incurred by alleged delays in providing discovery.

After Mark O’Mara questioned Don West on direct regarding the alleged discovery violations, Bernie de la Rionda did a nice job cross examining him by getting him to admit that the prosecution and defense discovered some information simultaneously, as in the case of Dee Dee’s hand written letter to Sybrina Fulton that she had placed in the family Bible together with other letters of condolence.

West’s effort to make an issue about BDLR failing to disclose that Sybrina Fulton sat next to Dee Dee when she was interviewed also came across as irrelevant nitpicking rather than a Brady violation.

BDLR also nailed West making him look foolish when West could not explain how Dee Dee’s hospital excuse about missing the funeral and wake because she could not face looking at Trayvon’s dead body had anything to do with whether the defendant murdered Trayvon.

We also learned today that the State recently sent the recording of the 911 call with the terrified-fear-of-death shriek to an expert to clean/enhance. The expert has not completed the process or issued a report.

True to form, Judge Nelson denied the defense motions without providing any basis to support a motion to recuse.

The next hearing will be May 28th with motions due no later than May 10th.

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Zimmerman Hearing Livestream

April 30, 2013

Tuesday, April 30, 2013

Good morning:

Watch the Zimmerman livestream here and comment below.


Mark O’Mara needs to stop whining

April 29, 2013

Sunday, April 28, 2013

Good morning:

Crane and I are counting down the hours to 9 am, Tuesday when Judge Nelson will commence the hearing that we have been waiting for since BDLR filed his epic Shakespearean put down of Mark O’Mara. In case you missed it Friday, O’Mara filed a super whiny Reply to State’s Response to Defendant’s Motion for Sanctions Against State Attorney’s Office for Discovery Violations. In a five-page reply neck deep in irony, he asked Judge Nelson to strike BDLR’s response to his motion for sanctions for discovery violations citing rules of professional conduct that require lawyers to tell the truth and not disparage other parties and their lawyers. Imagine that! This request is from the man who specializes in using his media mouthpieces at the Orlando Sentinel to keep repeating his message misrepresenting the evidence in Trayvon’s case while demonizing him, his family, and Dee Dee without a shred of evidence to support his false accusations. We about laughed ourselves sick when we read his whiny and fundamentally dishonest reply

The following matters have been noted for the hearing:

By the Defense:

1. Defendant’s demand for specific discovery, dated March 26, 2013, regarding any and all data regarding any downloads from any phone or phone number connected to George Zimmerman or his wife Shellie, etc. from the State of Florida

2. Defendant’s motion for sanctions against State Attorney’s Office for discovery violations, dated March 25, 2013

3. Defendant’s motion for sanctions against State Attorney’s Office for payment of attorney fees and costs, dated March 26, 2013

4. Defendant’s motion to unseal information listed as confidential information within a court filing or, in the alternative, demand for specific discovery, dated April 11, 2013

5. Motion to determine confidentiality of court records in opposition to defendant’s motion to unseal, dated April 12, 2013 (filed by Benjamin L. Crump, Esq. Jarian N. Lyons, Esq., Counsel for the Estate of Trayvon Martin)

6. Defendant’s demand for specific discovery, dated April 25, 2013, regarding any and all data, regarding any downloads or reports from any phone or phone number connected to Trayvon Martin from the State of Florida

7. Defendant’s demand for specific discovery dated April 25, 2013, regarding any and all cleaned up, edited and/or enhanced version(s) of any and all recorded 911 calls listened to by Tracy Martin from the State of Florida

8. Defendant’s motion to allow additional witness disclosure.

Regarding the defendant’s petition for a writ of certiorari and the thunderstorm of motions for sanctions and terms:

I previously described them as “ridiculous” and I see no reason to change my opinion.

The defendant’s effort to obtain judicial permission to depose Ben Crump does not make any sense. He did not witness the shooting; he conducted an investigation of Trayvon’s death on behalf of his clients, Tracy Martin and Sybrina Fulton. As a result of that investigation, he contacted Dee Dee and scheduled a telephonic interview. To avoid the possibility of being the only witness to what she said during the conversation, he arranged to have other people present when the call took place and he placed Dee Dee on a speaker phone so that everyone present could hear both sides of the conversation.

To obtain judicial approval to depose Crump, the defense must show, among other things, that no other witness except Crump can answer its questions. The presence of the other witnesses in his office during the call, whom the defense has not deposed, means the defense request to depose Crump must be denied.

Another requirement the defense must satisfy is that Crump’s answers would be relevant and admissible at trial. O’Mara has asserted that his answers would be relevant and admissible, but he has not provided a reason to support that conclusion. Why Crump’s testimony might be relevant is not apparent. Since Dee Dee talked to Trayvon, she is the witness with relevant and admissible testimony, not Crump.

Crump’s efforts to locate Dee Dee and interview her are attorney work product that is protected from disclosure. His conversations with his clients are protected from disclosure by the attorney client privilege.

Moreover, his effort to investigate George Zimmerman as the person who unlawfully killed Trayvon places his interests in opposition to O’Mara. This is another bar to the deposition.

Therefore, O’Mara’s argument to obtain judicial approval to depose Ben Crump not only appears to be doomed, it appears that it never had a chance to succeed. That is why I described it as ridiculous and a waste of time.

Time is running out for O’Mara with the trial date little more than 30 days away. I believe he is finally beginning to realize that his smoke and mirrors defense cobbled together out of half-truths, false statements and misstatements ain’t gonna make it to the courthouse on June 10th.

With the confirmation that the defendant is going to waive his statutory right to an immunity hearing on Tuesday, it should finally be clear to even the most devout believers that the defendant is going down.

O’Mara has invested a considerable amount of time and energy riding his client’s case to fame and fortune. I do not doubt his anger and disappointment. Nevertheless, blaming BDLR and Judge Nelsons for his own failures is the way his client behaves.

He needs to grow up.

Probable cause in arrests, initial appearances, informations, and grand jury indictments

April 27, 2013

Saturday, April 27, 2013

I write today to clear up some confusion that I may have caused regarding the purpose of an initial appearance in a federal criminal case. I think I caused the problem by failing to mention that all federal court felony prosecutions must be by grand jury indictment. I cover a lot of basic material that most people do not know about our criminal justice system. This information will help you understand why Dzhokhar Tsarnaev’s initial appearance happened on Monday. I also provide basic information about grand juries, including when and why they were created. Finally, you will have a more thorough understanding of probable cause and its role in our criminal justice system.

In tomorrow’s post I will look ahead to Tuesday’s hearing in the Zimmerman case and express some choice words to describe the new low in sleaziness achieved by Mark O’Mara.

Do not confuse an initial appearance with an arraignment. An initial appearance is a judicial review of a complaint and affidavit for probable cause to determine whether the affidavit actually establishes probable cause or reasonable grounds to believe the defendant committed the crime(s) charged in the complaint. The defendant does not enter a plea at the initial appearance for the simple reason that he cannot be arraigned unless he has been indicted by a grand jury.

The Fifth Amendment provides in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

Many states, including Florida, permit prosecution by information. The Zimmerman case is a good example. Florida permits felony prosecution by information except in capital cases, which must be prosecuted by grand jury indictment. Therefore, State Attorney Angela Corey could have prosecuted the defendant for second degree murder by grand jury indictment or by information. She opted to charge Zimmerman by information thereby avoiding the cumbersome and time consuming effort required to persuade a grand jury to indict him.

Prosecution by grand jury indictment originated in England in order to prevent the king from initiating bogus criminal prosecutions against political enemies for political reasons. Transferring the power to charge people with crimes from the king to a group of citizens was a remarkable accomplishment at the time and a very important step in the long evolutionary process from governance by an unchecked monarchy to governance by elected officials.

We live in a different world where grand juries have become little more than rubber stamps signing off on indictments proposed by prosecutors. This is not surprising since grand juries meet in secret without a judge to supervise the proceedings. Hearsay is permitted because the rules of evidence do not apply and the targets of their investigations are not present. The absence of judicial oversight and the exclusion of suspects and their lawyers from participation in the process permits prosecutors to rig the outcome.

A suspect cannot be arrested or charged with a crime unless there is probable cause (i.e., reasonable grounds) to believe he committed the crime.

In the case of an arrest, the police decide whether they have probable cause. However, police are not lawyers. They can and do make mistakes even when they are acting in good faith. Although prosecution by information transfers the power to charge a suspect with a crime from the police who arrested the suspect to a prosecutor, the test remains the same. The prosecutor must have probable cause to believe the suspect committed the crime. The same is true when the prosecution is by grand jury indictment only now the grand jury is making the decision instead of the prosecutor. Finally, in our legal system we have judicial review of police decisions to arrest and prosecutor’s decisions to charge suspects with crimes. The test is still probable cause but now a judge is making the decision.

Judges also review the issue of detention after police have arrested a suspect and booked him into a jail pending a decision to charge or release a suspect by a prosecutor or the grand jury. Judicial review of probable cause and detention in federal court takes place at the initial appearance.

An arraignment is a judicial hearing that occurs after a person has been charged, whether by information or grand jury indictment. The purpose of the arraignment is to formally notify the defendant that he has been charged with a crime(s) and to record his plea. In both federal and state courts, defendants are required to plead “not guilty.”

There is a good reason for this requirement. Arraignment calendars in state and federal courts are busy affairs. Judges cannot accept a guilty plea unless they are satisfied that the defendant knows what rights he is forfeiting by pleading guilty. The defendant also must provide a statement under oath regarding what he did that is legally sufficient to support the plea. Guilty pleas can take up to 15 or even 30 minutes to complete. Therefore, they are scheduled for a different time.

Magistrate judges in each federal district conduct the initial appearances and arraignments in federal court. Initial appearances are typically scheduled in the afternoon to allow sufficient lead time for federal law enforcement agents and prosecutors to prepare the formal charging document, which we call the complaint, and the supporting affidavit (i.e., sworn statement) for probable cause. The complaint and affidavit are filed in the clerk’s office at the United States Courthouse. In turn the clerk’s office notifies the federal public defender regarding the new arrest and that office assigns the case to a lawyer in the office.

The Pretrial Supervision section of the United States Probation Office also is notified about the new case and they assign it to one of their officers. Their job is to prepare a report for the magistrate judge regarding the defendant and to recommend whether he should be released pending the outcome of the case. They also recommend the conditions of the release.

The United States Marshal’s Office is responsible for transporting the person to court for the hearing.

If this process works smoothly, the defense attorney receives his copy of the complaint and affidavit for probable cause with sufficient time to review and discuss it with the defendant in the lockup at the courthouse before the hearing.

At the beginning of the hearing, counsel for the government and the defendant identify themselves for the record and the magistrate judge informs the defendant of the charge(s) against him in the complaint and the maximum sentence that could be imposed, if convicted. He also advises the defendant of the following rights:

1. Right to remain silent

2. Anything he says can be used against him

3. Right to be represented by the lawyer he chooses, if he can afford the fee and the lawyer files a notice of appearance confirming representation

4. Right to have the court appoint counsel to be paid at public expense, if he cannot afford counsel.

5. Right to be presumed innocent.

6. Right to a jury trial

Most defendants cannot afford counsel and for that reason the clerk’s office routinely assigns the case to the Federal Defender, unless retained counsel contacts the clerk’s office and confirms that he will represent the defendant.

In a multiple defendant case, each defendant is entitled to his own lawyer because acting in the best interests of one client often is not in the best interest of the other client. Assume, for example, that you are representing both defendants. Also assume that the prosecutor contacts you and offers a benefit to one client in exchange for a guilty plea and his agreement to testify against the other client. Congratulations! You now have a conflict of interest and have to withdraw from the case, if it would be in the best interests of the first client to advise him to accept the offer because you cannot advise him to do that without violating your duty to act in the best interests of your other client.

Since your conflict of interest would extend to your law partners, the law firm that employs you, or every other lawyer employed by the Federal Public Defender if you work for them, the district courts maintain a list of experienced and qualified lawyers in private practice who have agreed to accept appointments with financial compensation at the rates set by the court. This list is called the Criminal Justice Administration Panel or CJA Panel.

In multiple defendant cases, the clerk’s office appoints the Federal Public Defender to represent the first defendant. Additional defendants in the same case are each assigned to a CJA Panel attorney. I was a CJA Panel attorney in Seattle for 20 years, so I am familiar with the process.

The process I have described is the same in every federal district in the United States.

This process would have been followed in the Boston Marathon bombing case. Since the Federal Public Defender Office would have known that it would be formally appointed to represent Dzhokhar Tsarnaev on Monday, I am reasonably certain that they assembled a team over the weekend to work on the case. The team would have included at least one or two lawyers, an investigator, and possibly a mitigation specialist.

Subsequent news reports have confirmed that a defense team was assembled over the weekend.

I imagine the lawyer or lawyers attempted to meet with Dzhokhar Tsarnaev at the hospital over the weekend, but were denied access. Law enforcement officials can do that absent a request from the suspect in custody to meet with counsel. I doubt he made that request, if he were intubated, unconscious and unable to speak.

The Magistrate Judge also would have known that she would have to conduct an initial appearance for Dzhokhar Tsarnaev on Monday, assuming he survived until then.

I am relatively certain that arrangements were made on Monday morning to conduct the hearing in the hospital at the patient’s bedside with notification to all parties concerned.

I doubt defense counsel were permitted to meet with their client before the FBI’s interrogation team completed its work.

The Fifth Amendment issue is whether the defendant’s statements will be admissible against him, since he provided them during a custodial interrogation without advice and waiver of his rights per Miranda. The government will argue that the public emergency exception exempted it from having to Mirandize the defendant. The defense will argue that the exception has not been judicially approved and did not apply.

A closely related issue is whether the defendant’s statements were voluntary or coerced, given his medical and mental condition. Was he competent to answer questions?

The Sixth Amendment issue is whether he requested a lawyer at any time before or during the interrogation. We know he could not speak and the interrogation team would have known that. Was he denied pencil and paper at the team’s request before the interrogation? Did he scribble out a request that was ignored?

The remedy for a failure to Mirandize the defendant prior to a custodial interrogation is to exclude his statements from being admitted into evidence.


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Responsibilities of United States Magistrate Judges and the United States District Court Judges

April 25, 2013

Magistrate judges in federal court have limited authority compared to the United States District Court judges who employ them. Magistrate judges handle responsibilities and cases that the judges regard as rather tedious and not worth their time and trouble. Thus, the magistrate judges handle petty offenses and misdemeanor criminal cases. With the consent of the parties they can adjudicate civil cases.

The district court judges who oversee their work are nominated by the president, and if confirmed by the Senate, they are appointed for life. The United States District Courts are our federal trial courts. With the exception of the nine justices on the SCOTUS and the federal judges on the Circuit Court of Appeals in which their district is situated, the district court judges are absolute masters of their domain, subject only to abiding by the United States Constitution and its amendments, including the Bill of Rights, and appellate and Supreme court review of their decisions. Depending on the circumstances and applicable laws, they also have the power to order the POTUS to do or to stop doing something.

Vested with virtually unlimited power to decide the cases and controversies that are assigned to them, even the most gracious and polite district court judges eventually develop an expectation that if they say “frog,” to someone, they expect that person to respond by asking “how high do I jump, your honor.” Should you appear before one of them as a party to a lawsuit, a lawyer representing a party to a lawsuit, a witness testifying in a case, a juror, or as an observer sitting in the audience, you best be on your best behavior with hat in hand and ready to address them formally as “Your Honor.”

Do not even think about entering a courtroom with a cell phone or a camera because you will be ordered to immediately leave the courtroom and if you do not move fast enough, you will be escorted out.

When they reach age 65, they can opt for senior status, which is a form of semi-retirement at full pay and benefits in which they get to control the number of cases assigned to them. They also have the option of travelling to any another district that is backlogged with cases and agree to lend a hand to reduce the backlog by taking a few cases leaving them plenty of time to enjoy living in a new community and exploring its amenities. If my life had taken a different path, I would be splitting my time between Seattle and Hawaii.

In many ways it is the perfect job providing an endless supply of intellectually stimulating cases with important issues that occasionally affect all Americans.

United States Magistrate Judges handle all of the initial appearances in the federal court system. They advise defendants of their legal rights, confirm counsel, review complaints and the affidavits of probable cause filed in support of the charge(s) in the complaint, and make sure that each defendant understands the charges against them. They also conduct detention hearings, which are bail hearings, and either detain defendants without bail or set bail and conditions of release.

Magistrate judges also conduct preliminary hearings to determine whether probable cause exists to support the charge(s) in the complaint. Unlike the probable cause determination at the initial appearance, which is based only on a review of the affidavit attached to the complaint, the probable cause determination at the preliminary hearing usually is based on the testimony of the agent whose affidavit was filed with the complaint.

The federal prosecutor conducts the direct examination and defense counsel cross examines. The scope of the hearing is supposed to be limited to the issue of probable cause, but most defense lawyers, including me, attempt to venture as far afield as the magistrate judge will permit to obtain as much discovery as possible.

In Dzhokhar Tsarnaev’s case that might include inquiring about Dzhokhar’s getaway and the death of Tamerlan, Dzhokhar’s role in the offense compared to Tamerlan’s, the identity of the driver whose car was allegedly hijacked and how he got away and whether he called police, and what Dzhokhar told the interrogators.

Assuming for the sake of argument that prosecutors seek the death penalty and Dzhokhar is convicted, with one exception, his age, youthful appearance, emotional maturity, ability to reason, significant wounds and most important, his role in the offense, likely will be the factors that the jury will focus on in deciding whether to sentence him to death or to life without parole.

The one exception or wild card in the trial may be police misconduct and a government effort to conceal that misconduct that persists through the trial. For example, who ran over Tamerlan and dragged him 30 to 40 feet? Was it Dzhokhar attempting to elude capture or was it someone driving a police SUV?

I hope this brief description clarifies any questions you have about the duties and responsibilities of United States Magistrate Judges and the United States District Court Judges who employ them.


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Afro-Peruvian emperor wears no clothes

April 24, 2013

Wednesday, April 24, 2013

BDLR has filed a motion asking Judge Nelson to order the defendant to appear at the April 30th hearing and state on the record that he is waiving his right to the immunity hearing.

H/T to Southern Girl 2 for providing the link to BDLR’s motion

He also asks Judge Nelson to issue an order that she will not permit the immunity hearing to take place during the trial or after it.

I support this motion. In fact I published three posts in early March warning that this needed to be done to avoid significant legal problems that might otherwise come up forcing a retrial of the case, if the jury convicted the defendant.

1. Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea

2. Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

3. Post trial immunity hearings are a terrible idea

This motion is an example of a prosecutor taking action to protect the record from a collateral attack by a new lawyer representing the defendant after he is convicted and sentenced to prison and arguing that the defendant is entitled to a new trial and a statutory immunity hearing because he never waived his right to that hearing and did not know or consent to Mark O’Mara waiving it for him.

BDLR also wants Judge Nelson to clarify the record regarding the possible merger of the statutory immunity hearing with the trial, which O’Mara had suggested as an alternative to holding the hearing during the last two weeks of April, so that the record shows that she considered and denied O’Mara’s request more than a month before trial. Such an order would foreclose an argument by O’Mara that he never waived the statutory immunity hearing and reasonably believed and relied to the defendant’s detriment on the two matters being combined.

Best to clarify that current ambiguity in the record so that it does not result in reversal and remand for an immunity hearing and a new trial, if the defendant loses the immunity hearing.

Therefore, I believe BDLR’s motion is timely and necessary to protect the record.

Although I believe O’Mara decided long ago that he had no chance to win the immunity hearing because the defendant could not withstand cross examination due to his many conflicting and inconsistent statements. I think he decided that he did not want to formally admit in open court on the record that he was waiving his client’s right to the statutory immunity hearing because he was concerned about the effect that his waiver would have on his efforts to substantially increase donations to his “innocent” client’s internet defense fund and win the trial in the court of public opinion. To use a poker analogy, folding your hand at the last minute by waiving the hearing establishes that you were bluffing when you kept insisting that you had a winning hand.

Not exactly the ideal position for the defense to be in on the eve of trial.

BDLR is going for the jugular with this motion to clarify for all the world to see that the Afro-Peruvian emperor wears no clothes.


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Welcome to federal court counselor

April 24, 2013

Wednesday, April 24, 2013

I write today to introduce you to the practice of criminal law in federal court. It’s called trial by ambush.

Say goodbye to the practice of criminal law in state courts that we have been following in Florida in Trayvon Martin’s case where pursuant to the Sunshine Law:

1. discovery released to defense counsel long before trial also is released to the public,

2. defense counsel can depose the prosecution’s most important witnesses under oath before trial, and

3. pretrial hearings are televised as well as the trial.

The only discovery released to defense counsel before trial in federal court consists of

1. the complaint and the affidavit of probable cause filed in support of the complaint (I posted a link to these documents in my post titled, Update on Dzhokhar Tsarnaev’s initial appearance today)

2. the indictment returned by the grand jury,

3. the client’s statements to law enforcement (some and perhaps all statements by Dzhokhar Tsarnaev may have been obtained in violation of Miranda v. Arizona, 384 US 436 (1966).

4. the search warrants for property owned by the defendant, affidavits for the search warrants, and an inventory listing all of the property seized.

Pursuant to the Jencks Act 18 USC 3100 et seq., defense counsel in federal court are not entitled to know the identities of the witnesses the government intends to call during the trial until they are called to the stand to testify and they are not entitled to be provided with copies of their statements to law enforcement officials and their grand jury testimony under oath until after they have finished testifying on direct. This incredibly harsh and brutal law has been modified somewhat to avoid the loud complaints of angry and impatient jurors inconvenienced by a multitude of interminable recesses spent twiddling their thumbs wondering What is going on while defense counsel frantically reviews the Jencks material in an effort to construct an effective cross examination of a witness who just completed their direct testimony.

It did not take long for judges and prosecutors to realize that discovery pursuant to the Jencks Act had to be modified to accommodate the judicial need to try cases expeditiously without lengthy interruptions to review Jencks material.

Since federal criminal trials are always scheduled to begin on Mondays, the prosecution decided to deliver a witness list and the Jencks material for each witness to defense counsel’s office just before the close business on Friday afternoon. This would allow defense counsel, so the argument went, a reasonable opportunity to familiarize himself with the discovery and to be prepared to cross examine prosecution witnesses without requesting a recess. This modification is now the standard operating procedure in most federal courts, although increasing numbers of prosecutors in many districts have been moving in the direction of providing discovery earlier in an effort to convince defendants and their counsel that resistance is futile and the best result possible is to plead guilty and agree to testify against other defendants.

Some of you may think that does not sound so bad.

You forget where you at.

You be in federal court where the feds specialize in prosecuting multi-defendant, multi-jurisdiction conspiracies involving wide ranging investigations that lasted many months and sometimes years. Rather than thinking of the discovery in terms of a total number of pages, federal criminal defense lawyers refer to it in terms of the number of banker’s boxes needed to contain it or the number of trips we had to make to the courthouse each day to transport our complete set of banker’s boxes to the courtroom and the time it took us to set up and know where to find stuff.

Criminal defense attorneys who practice in federal court have to learn how adjust. I actually got to the point where I preferred trying cases in federal court because I liked the polite, respectful and professional atmosphere. The courtrooms are substantially larger than state courtrooms, so much so that voice amplification often is necessary. Lawyers and judges know their stuff and they come to court prepared to do battle. Defendants are treated with respect. Lawyers do not try their cases in the court of public opinion and you do not see much grandstanding.

I realized the first time that I appeared in federal court, I had to substantially improve my game and I did. There were many good role models for me to emulate.

Fortunately, I had some success in federal court.

I will never forget standing with my arm around my client holding him upright as he sobbed with joy as the judge read 26 consecutive verdicts of not guilty acquitting him of all charges in a major multi-district cocaine conspiracy.


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Police violated the Fourth Amendment in Watertown house to house searches

April 23, 2013

Tuesday, April 23, 2013

Good morning:

We begin today with a history lesson purchased in blood, sweat and tears:

William Pitt declared in Parliament in 1763,

“The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”

The house to house searches by police without search warrants in Watertown violated the Fourth Amendment.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

With the exception of a few narrow and well-delineated exceptions that do not apply to the house to house general searches in Watertown, the Fourth Amendment prohibits police searches of residences without a search warrant issued by a neutral and detached magistrate upon reviewing a sworn affidavit and finding that it establishes probable cause to believe that the residence to be searched contains evidence of a particular crime. Both the residence to be searched and the evidence to be sought must be particularly described in the affidavit and the search warrant.

Consent to search is one exception; however, consent must be free and voluntary. Mere acquiescence to authority at the point of a gun is not valid consent.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.

Bumper v. North Carolina, 391 U.S. 543, 548-550 (1968).

Exigent circumstances is another exception. For example, police can lawfully enter a residence without a search warrant, if they are in hot pursuit of a fleeing suspect for whom they have probable cause to arrest or to prevent the destruction of evidence. United States v. Santana, 427 U.S. 38 (1976).

In Santana for example,

Michael Gilletti, an undercover officer with the Philadelphia Narcotics Squad arranged a heroin “buy” with one Patricia McCafferty (from whom he had purchased narcotics before). McCafferty told him it would cost $115 “and we will go down to Mom Santana’s for the dope.”

Gilletti notified his superiors of the impending transaction, recorded the serial numbers of $110 (sic) in marked bills, and went to meet McCafferty at a prearranged location. She got in his car and directed him to drive to 2311 North Fifth Street, which, as she had previously informed him, was respondent Santana’s residence.

McCafferty took the money and went inside the house, stopping briefly to speak to respondent Alejandro who was sitting on the front steps. She came out shortly afterwards and got into the car. Gilletti asked for the heroin; she thereupon extracted from her bra several glassine envelopes containing a brownish-white powder and gave them to him.

Gilletti then stopped the car, displayed his badge, and placed McCafferty under arrest. He told her that the police were going back to 2311 North Fifth Street and that he wanted to know where the money was. She said, “Mom has the money.” At this point Sergeant Pruitt and other officers came up to the car. Gilletti showed them the envelope and said “Mom Santana has the money.” Gilletti then took McCafferty to the police station.

Pruitt and the others then drove approximately two blocks back to 2311 North Fifth Street. They saw Santana standing in the doorway of the house with a brown paper bag in her hand. They pulled up to within 15 feet of Santana and got out of their van, shouting “police,” and displaying their identification. As the officers approached, Santana retreated into the vestibule of her house.

The officers followed through the open door, catching her in the vestibule. As she tried to pull away, the bag tilted and “two bundles of glazed paper packets with a white powder” fell to the floor. Respondent Alejandro tried to make off with the dropped envelopes but was forcibly restrained. When Santana was told to empty her pockets she produced $135, $70 of which could be identified as Gilletti’s marked money. The white powder in the bag was later determined to be heroin.

Santana, at 39-41

Justice Rehnquist wrote the majority opinion upholding the warrantless arrest and seizure of heroin and money from Santana thereby reversing the Third Circuit Court Of Appeals decision. He said,

In United States v. Watson, 423 U. S. 411 (1976), we held that the warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment. Thus the first question we must decide is whether, when the police first sought to arrest Santana, she was in a public place.

While it may be true that under the common law of property the threshold of one’s dwelling is “private,” as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santana was in a “public” place. She was not in an area where she had any expectation of privacy. “What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U. S. 347, 351 (1967). She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. United States, 265 U. S. 57, 59 (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in Watson.

The only remaining question is whether her act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not. In Warden v. Hayden, 387 U. S. 294 (1967), we recognized the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons. This case, involving a true “hot pursuit,” is clearly governed by Warden; the need to act quickly here is even greater than in that case while the intrusion is much less. The District Court was correct in concluding that “hot pursuit” means some sort of a chase, but it need not be an extended hue and cry “in and about [the] public streets.” The fact that the pursuit here ended almost as soon as it began did not render it any the less a “hot pursuit” sufficient to justify the warrantless entry into Santana’s house. Once Santana saw the police, there was likewise a realistic expectation that any delay would result in destruction of evidence. See Vale v. Louisiana, 399 U. S. 30, 35 (1970). Once she had been arrested the search, incident to that arrest, which produced the drugs and money was clearly justified. United States v. Robinson, 414 U. S. 218 (1973); Chimel v. California, 395 U. S. 752, 762-763 (1969).

We thus conclude that a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place. The judgment of the Court of Appeals is


Santana, at 42-43

The police who conducted the Watertown house to house searches did not apply for search warrants. They did not have probable cause to search any of the houses they searched and they did not find the suspects or any evidence to be used against them. These were general searches which are specifically prohibited by the Fourth Amendment.

Dzhokhar Tsarnaev was ultimately found hiding in a boat outside the area that the police searched. He was discovered by the owner of the boat who promptly notified police. The boat was situated on a trailer parked in the owner’s driveway.

Either we are a nation of laws or we are not.

We cannot claim to be a nation of laws when we break our laws.


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Update on Dzhokhar Tsarnaev’s initial appearance today

April 22, 2013

Monday, April 22, 2013

Dzhokhar Tsarnaev had his initial appearance today in the hospital before a U.S. Magistrate Judge. He was represented by Bill Fick of the Federal Public Defender Office in Boston. Fick confirmed that he will represent Dzhokhar.

He was provided with a copy of the complaint charging him with one count of using a weapon of mass destruction in violation of 18 USC 2332a(a) and one count of malicious destruction of property resulting in death in violation of 18 USC 844(i).

Fick waived the detention hearing, which means he and his client agreed that release on bail is not realistic. Fick will be supported by federal death penalty resource counsel, which may include Judy Clarke as she is one of the resource counsel. As you may recall, she represented Jared Loughner.

Dzhokhar is charged by criminal complaint, which is just a temporary holding device.

To find out more about the case, you will want to read FBI Special Agent Daniel Genck’s affidavit filed in support of the complaint. Go here to read the complaint and affidavit.

The Magistrate Judge found that the affidavit is sufficient to establish probable cause to support the two charges in the complaint.

The case is scheduled for a preliminary hearing on May 30th, to determine if probable cause exists to support the charge, but don’t expect that hearing to take place because a grand jury will indict him before that date.

The indictment may and probably will contain additional charges. He will be arraigned after the indictment is returned.

There will not be any need for a preliminary hearing after the grand jury returns an indictment because a grand jury necessarily makes that finding when it returns an indictment.


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