Open thread on criminal defense attorneys: Gerry Spence opens a can of whup-ass

April 22, 2013

Monday, April 22, 2013

Gerry Spence is the best trial lawyer in the United States and here is an example of what he can do to a witness on cross examination.

Watch him in this video when he opens a can of whup-ass.

Speaking from experience, this video about a day in the life of a criminal defense attorney is all too real.


Who killed Tamerlan Tsarnaev

April 22, 2013

Monday, April 22, 2013

I write today regarding whether Tamerlan Tsarnaev was killed while in police custody, naked, and handcuffed with his hands behind his back. I was not aware of this dispute until I got up this morning and reviewed last night’s comments to yesterday’s post about Dzhokhar Tsarnaev. As all of you probably know, police have identified the two brothers as the Boston Marathon bombers.

Tamerlan (26), now deceased, is the older brother; Dzhokhar (19) is the younger brother. Police arrested him Friday night. They are holding him in a hospital where he is being treated for a gunshot wound to the throat.

Apparently, police have started interrogating him without advising him of his Miranda rights to remain silent and to be represented by counsel, even though he is intubated, medicated and listed in serious condition. This is not a surprise since the Department of Justice announced over the weekend that the interrogation would commence without Miranda warnings pursuant to the public-safety exception to the Miranda rule. I have already explained why I believe that is a bad idea and will not revisit that issue in this post.

Now to the controversy.

Tamerlan was reportedly shot by police during a shootout in which Dzhokhar escaped in a vehicle after running over Tamerlan and dragging him 30 or 40 feet.

Dzhokhar was reportedly driving a vehicle that he and Tamerlan had carjacked.

There is a CNN video that shows a naked male with his hands cuffed behind his back being escorted to and seated in the back seat of a patrol vehicle. That man does not appear to have any injuries and he looks like Tamerlan.

The video was presented here together with a gruesome still photo of a corpse riddled with bullet holes and slashes to the torso. That photograph also looks like Tamerlan.

When viewed together I believe a viewer might reasonably conclude that Tamerlan is displayed in the video and still photograph. If that is true, then it would appear that the police may have murdered Tamerlan.

However, later reports this weekend indicate that the naked man being placed in the back seat of the patrol vehicle was the driver of the vehicle that Tamerlan and Dzhokhar carjacked. If that turns out to be true, then the story was false and should be disregarded.

I lack sufficient information to answer the question I posed in the title, but it’s certainly looking like the viral story is false.

However this turns out, I think it’s important for us to realize how easy it is to fool people with photos and videos. We should already have learned that lesson with the two cell phone photos of the defendant’s face and the back of his head that show injuries not readily apparent in photos taken at the station house a few hours later in decent lighting by a professional photographer with good equipment.

I will end this post with a request. Please do not embed gruesome images in comments. Instead, bracket the link and provide a warning so that viewers will have the opportunity to decide if they want to view the image, which they can do by copying the link and pasting it into their browser.

Carry on.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred

H/T to Ay2Z for embedding this video in the comments:

This video is safe to watch.

EDIT: Looks like the gruesome death photo is being systematically removed from the internet.


Dzhokhar Tsarnaev should be Mirandized

April 21, 2013

Sunday, April 21, 2013

I write today to defend a fellow citizen’s Fifth Amendment right to remain silent during a custodial interrogation and his Sixth Amendment right to consult with counsel and have counsel present during a custodial interrogation. He has not been questioned yet due to his medical condition.

Dzhokhar Tsarnaev is a naturalized United States citizen in custody for his suspected participation in a scheme that detonated two bombs killing 3 people and injuring many more along the Boston Marathon race course on April 15, 2013. He is also a suspect in the murder of a law enforcement officer on the campus at the Massachusetts Institute of Technology after the bombing.

He is not an enemy combatant who attacked United States military personnel on foreign soil.

Dzhokhar Tsarnaev should be advised that he has those rights before law enforcement agents attempt to question him and no interrogation should take place, unless he voluntarily waives those rights and agrees to answer questions. No less is required by the SCOTUS decision in Miranda v. Arizona, 384 US 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

If an interrogation proceeds without the advice of rights and voluntary waiver of those rights required by Miranda, then anything he says should be suppressed and cannot be used against him in a court of law.

He has the right to be charged and prosecuted in the United States criminal justice system, rather than before a military tribunal, and accorded all of the rights that would be accorded to any other defendant charged with a crime.

The United States Department of Justice has announced that he will be prosecuted in the civilian criminal justice system and that is a proper decision.

However, despite an acknowledged lack of any evidence or reason to believe that Tsarnaev is part of a larger plot with plans to commit other terrorist acts, the Justice Department has announced that it intends to interrogate him without Mirandizing him.

This decision is an intentional violation of Miranda that not only violates the suspect’s rights, it potentially jeopardizes the prosecution.

There is no reason ever to sacrifice due process of law and this casecertainly provides no compelling reason to consider making an exception.

For more information, read this informative article by Josh Gerstein at Politico.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred


Can Shellie Zimmerman testify against her husband in his murder trial

April 20, 2013

Saturday, April 20, 2013

Good morning:

Today’s topic will be the husband-wife marital privilege. What is it? What does it cover? How does it apply to Shellie and George Zimmerman?

The husband-wife marital privilege is an evidentiary rule that protects confidential communications between spouses from disclosure to third parties. The purpose of the rule is to encourage open communication between spouses without fear that one spouse may be forced under penalty of law to disclose what the other said.

The privilege does not apply to all communications; it only applies to communications that were intended to be kept confidential.

Not all confidential communications are protected. For example, in Florida there is no privilege:

(a) In a proceeding brought by or on behalf of one spouse against the other spouse.

(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.

(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.

See: FL Stat. 90.504(3)

Open communications between spouses in the presence of other people are not confidential. For example, anything the defendant may have stated to his wife in the presence of another person, such as Mark or Sondra Osterman or Frank Taaffe, regarding his encounter with Trayvon Martin before or after the shooting would not be privileged.

Communications between spouses during recorded jailhouse telephone calls are not privileged when the parties are warned at the beginning of the call that it will be recorded.

I believe an interesting argument can be made, pursuant to FL Stat. 90.504(3)(c), that Shellie Zimmerman can testify about disclosures by her husband regarding the alleged murder since she is a “defendant-spouse.” Even though she is a defendant in a different case, the two are related matters.

Certainly the argument is more powerful regarding the admissibility of any statements that her husband may have made to her about her alleged perjury because it occurred at the defendant’s bond hearing in an effort to conceal substantial assets exceeding $100,000 from the court, including a second passport that the defendant may have been planning to use to flee the jurisdiction to avoid prosecution.

Flight to avoid prosecution is admissible to show consciousness of guilt and, as Judge Lester noted in his order setting bail, the evidence supported an inference that only the fortuitous attachment of an ankle bracelet with a GPS device prior to the defendant’s release from jail may have prevented him from fleeing the United States with a valid passport and more than $100,000 of other people’s money.

Should the fortuitous circumstance that related criminal cases are pending against a husband and a wife under different cause numbers, instead of a single cause number, exclude application of section (3)(c)?

What do you think?

(H/T to Searching Mind for spotlighting this issue in comments this morning)

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred


Dispute regarding publication of settlement amount is a tempest in a teapot

April 19, 2013

Friday, April 18, 2013

Good morning.

The dispute regarding whether the settlement amount should be publicized is a tempest in a teapot.

A defendant in a criminal case has the right to cross examine a witness against him regarding any bias or prejudice the witness might have that might influence their testimony in the case.

To facilitate discussion, let us assume that the case settled for $1.75 million.

Mark O’Mara wants to know that amount so that he can argue to the jury that Tracy Martin and Sybrina Fulton were not credible witnesses when they identified Trayvon as the person who uttered the death shriek.

For example, he could argue that they had 1.75 million reasons to lie.

As distasteful as such an argument would be, I believe the defense has a right to make it.

Whether it would make any sense to cross examine them about the settlement and to argue that they lied when they identified Trayvon as the source of the death shriek is another matter.

I do not believe there will be any doubt that Trayvon uttered that shriek because he was unarmed and the shriek abruptly ended as though silenced by the gunshot.

There is no credible argument that the defendant uttered that shriek as he pulled his gun out of the holster, extended his arm, aimed while making certain that he would not shoot his left hand by mistake, and pulled the trigger simultaneously stopping his scream.

To argue to the jury that Trayvon’s parents lied for financial reasons would be to invite scorn, if not hatred, and prejudice the defendant.

Nevertheless, if O’Mara wants to be stupid and venture into an area where no one with an ounce of sense would dare to go, the law erects no barrier and permits him to make a fool out of himself.

I doubt he is that stupid. I suspect he is merely posturing and would not dare go down that road.

Judge Nelson could dispose of this motion by ordering that the amount of the settlement remain confidential for now, subject to reconsideration if Trayvon’s parents testify.

Let him dare to bring it up.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

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How to interpret witness lists

April 18, 2013

Lawyers rarely, if ever, call everyone listed on their witness list and sometimes they will call someone who is not on their list.

Generally, they will list everyone they believe they might call to the stand, including listing several people who would testify about one thing when only one witness is necessary and testimony by the others would be cumulative and likely inadmissible.

Prosecution witness lists tend to be more accurate and reliable because they have the burden of proof and put on their case first.

Defense counsel usually include many prosecution witnesses on their lists but never call them to the stand because they make their points while cross examining them after the prosecution calls them to the stand and completes the direct examination. Since the defense usually makes its case during cross examination, you will not often see it present much of a case after the prosecution rests. Two major exceptions would be defense expert testimony and testimony by the defendant.

Scheduling witness testimony and arranging travel and overnight accommodations is a major hassle that requires patience and flexibility to change plans without appearing to miss a step.

When the judge says, “Call your next witness,” you better be ready to go.

The Orlando Sentinel is reporting today that the defense has filed a new witness list listing more than 200 people, including more than half of the Sanford Police Department.

I cannot imagine why they did that since a lot of those people probably had nothing to do with investigating this case and their opinions regarding the guilt or innocence of the defendant or his character are irrelevant and inadmissible.

In fact, the defense dare not open the door by introducing evidence of the defendant’s good character. That would permit the prosecution to introduce evidence about the defendant’s bad character. In other words, Katie bar the door.

To get a more realistic idea of whom the defense might call to the stand, compare the prosecution and defense lists and eliminate every name on the defense list that also appears on the prosecution list.

Eliminate the SPD cops and everyone else on the defense list who might be a character witness.

The remainder is a reasonable ball-park guesstimate.

Should be pretty much limited to experts.

That’s the list I am most interested in.

The rest, not so much.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

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FEATURING: Fauxmccoy with advice on how to browse safely

April 18, 2013

Fauxmccoy knows of what she speaks:

So … I Married a Hacker

This story is not quite as adventuresome as my first marriage, when at 19 “I Inadvertently Married a Much Older, Denture Wearing, Mentally Ill Drug Dealer”. Sadly, the only thing known at the time i said “I do” was the fact that he was older. The marriage did not last long and the divorce settlement (in which i received 200 hits of San Francisco LSD to distribute along Haight Street) was just as wacky, but I digress.

When I married my young hacker, we were both students and i routinely walked in on him doing nefarious computer deeds. This happened regularly until we had our first child, at which point, i became quite clear that from now on, if the police were to show up on our door, it would be because one of us called them and for no other reason. Out of love and respect, he left his hacking ways behind although he remains up to date on methods because that is how he earns his livelihood. He was able to parlay his skills into being a well compensated systems analyst who specializes in network security for organizations who depend on it, such as municipalities, the IRS, VISA, etc. Although considering these clients, i am hard pressed to say that he is now one of the ‘good guys’, but the work is certainly legal and above board.

In light of a number of us here experiencing internet security issues, I asked Fred if he would be interested in me resurrecting my tech writing career by presenting a “best practices” model for cruising the internet with relative security. In this article, I will detail a number of things which each of us can each do to beef up our internet presence, but will sum it up using my husband’s statement “do not be the low-hanging fruit”.

We know that some of us have been specifically targeted because of our work/statements in support of the Martin/Fulton families receiving justice for the loss of their son, Trayvon Martin. Some of this, while disconcerting, is relatively benign, such as having usernames and avatars stolen and used to spread vile, racist garbage on other sites. While this is unpleasant, there is next to nothing that will make this activity stop. My best advice is to not use personal pictures of your self, children, even pets as avatars which would cause you distress if used by the wrong hands.

Others here have experienced far more difficult scenarios in which email accounts have been hacked, doxing has occurred, family members have been accessed and harassed, and threats have been received. These things can be addressed, your success in avoiding being in this position depends upon your vigilance.

Basic Browsing Security

This is the level of security i would recommend on any trusted site, including this blog, the Huffington Post etc. I will give more stringent security tips below for visiting blogs which actively support the defendant because they represent greater risk.

1. Avoid revealing overly personal information. This can range from your actual name, city info, and age, up to posting pictures with identifying details in the background (for example, a photo in which a diploma in the background which can be blown up to determine your name).

2. Keep your computer system fully updated, including the operating system, anti-virus updates, and most especially updates from Flash, Java, and Adobe Reader which are notorious malware vectors. THIS IS CRITICAL!

3. Install an anti-virus program. The husband highly recommends the free versions of AVG and Microsoft Security Essentials. MAC systems are no longer immune and there is a free app called ClamXav which i have used and like. Keep these current at all times.

4. Install a browser specific add on to block java script and flash. A malicious script hidden on any site can not only decipher your internet address, but can use code to bypass your firewall and at that point, all information on your home network is breached. I use No Script and Flash Block for Firefox, but you will have to determine the most appropriate for your browser.

5.Social engineering is one of the best known tricks for gaining access to your system. This includes fraudulent attempts to gain your passwords by sending out mass emails for people to change their Twitter password for example. Unfortunately, the link you press in the email may look exactly like Twitter, but it is not. Should you receive such an email, go directly to your account (not by provided links) and change your password. Social engineering also consists of embedded links posted on any site which can redirect your browser to a page which contains malicious script that appears blank. In other words, be careful of that which you click, shortened URLs can be especially dangerous (such as bit.ly or tiny url). There are servies such as unshorten.com which you can use to determine where the link redirects and decide in advance if you trust the site.

6. Passwords — not enough can be said about passwords as this is one of the easiest ways for a security breach to occur. NEVER re-use passwords. For important accounts, such as your bank or main email, you want to use the strongest password possible, this consists of a 12 character, randomly generated string which includes upper/lower case letters, numbers and symbols. Do not use ordinary words such as ‘deadbeat’ substituting 3s for e or 4 for a, such passwords are very simple to break. Obviously do not use your name or that of anyone in your immediate family, including your pet.

7. The best password system is to install a password vault add-on such as “LastPass” and I highly recommend doing so. LastPass is well regarded in the tech world and works across all platforms and browsers, there is even an android phone app available at minimal cost, but i do not like the interface, personally. LastPass will store personal data on its secure server (i even keep my credit card number stored there) to be used in filling out online forms; it can generate strong passwords for any site which requires registration, and then stores them so that you do not need to remember them. Always let LastPass generate the strongest possible password. LastPass will automatically log you into a website should you wish when you go to visit it and can run a security check on your passwords to identify weaknesses. When using LastPass, you will need a password to log into it, you want this to be a strong password. Although it sounds counter-intuitive, it is really OK to write down the few strong passwords you need (bank, email, LastPass) and keep it in your wallet.

8. Do not use your main email for registering on sites. For me, my gmail account is my main account for friends and business dealings. I use a yahoo account for registering for most sites which require one and I make sure that the yahoo account has no reference either in the account settings or contacts of my primary gmail account.

Browsing Questionable Sites

I know that many of us cannot help but to see what the CTH and its spin-offs are up to now. I consider doing so as a potential security risk. First of all, just by visiting the site, administrators have access to our IP addresses, I for one, do not want that. Secondly, I do not trust that there are no malicious codes embedded. We know that a few of us have had serious security breaches and unfortunately, we know that this crowd engages in unethical doxing behavior. If you feel that you absolutely must know what they are discussing, I advise using extra caution, including the following steps:

1. Browse Anonymously — I pay a small monthly fee to access a virtual private network (VPN) to mask my IP address at all times. VPNs are relatively inexpensive (some are free, but advertising driven and slow), easy to install, can be used on both your computer and smart phone, and provide the ultimate security of guarding your IP address any time you are online. VPNs also add a great level of security when using a laptop, especially in a public space. This article in LifeHacker details some of the best VPNs available and contrasts their services and pricing structure. http://lifehacker.com/5940565/why-you-should-start-using-a-vpn-and-how-to-choose-the-best-one-for-your-needs. Notice that I used the direct link in its full form so that you can see where you are going before you click. I think that as a service to each other, we should always do this. If a VPN is out of your price range, consider using an online anonymizer such as Anonymouse prior to viewing sites with questionable content.

2. Block Script and Flash — As stated above, I use NoScript and FlashBlock for firefox. Whatever browser you use will have some version available, search Lifehacker.com for browser specific recommendations. I cannot stress how important this is when browsing sites of questionable content.

3. Registration — if you must register at the site, use a throw-away email address at sites such as Spaminator or Mailinator and under no circumstances should you use the same password for registering that you use at any other site.

4. Posting — The best practice would be to not post at such sites, but if you do, do not use the same userID there that you would here or elsewhere.

A Note to Blog Owners

I know a number of you other than Fred maintain your own blogs, please remember that our virtual security is in your hands. You have access to our IP addresses and emails. Keeping your blog secure with strong passwords is critical.

In conclusion, I hope that this helps us all to become more aware of the security of our online presence and provides the tools necessary to become secure. I am open to any further suggestions and hope that comments generate some. Also, for the tech savvy amongst us who use different browsers or alternate services, please feel free to share what works for you. I am working on a follow up to this on what you can do once you know your security is breached and hope that Fred will be kind enough to post. Obviously if you have had a security issue and are receiving any type of threat or harassment, please report to your local authorities.

Happy browsing, stay safe, and enjoy capital letters in a post from me 🙂


How and when to present an ineffective assistance of counsel claim

April 17, 2013

Wednesday, April 17, 2013

Good afternoon to all.

Searching Mind has asked a series of good questions in comments to my article yesterday regarding whether a defendant can raise an ineffective-assistance-of-counsel claim (IAC) on direct appeal. Xena also asked me to discuss the experts I would contact about the case. I will not identify anyone by name, but I will mention the subject matter that I would want to discuss with an expert suitably qualified in that area.

First, let’s take a look at whether an IAC claim can be raised on direct appeal.

I agree with Searching Mind that IAC claims can be raised on direct appeal, if the record unequivocally supports the claim such that there are no disputed material facts and therefore no need to remand the case to the trial court with instructions to conduct an evidentiary hearing to resolve disputed facts. This is equivalent to saying that the DCA can decide the issue as a matter of law on a set of undisputed facts.

This situation does not happen very often. For example, one of the elements of an IAC claim requires a defendant to plead and prove the standard of practice at the time the alleged error was committed by defense counsel. The defendant also must plead and prove that defense counsel violated that standard, that the violation was material and not merely a tactical decision. In most cases, the parties dispute one or more of those issues and the DCA cannot determine whether the defendant has a valid IAC claim by reviewing the transcript on appeal. The answer isn’t there.

Therefore, the rule is the DCA will not review an IAC claim on direct appeal when material facts are disputed, the answer is not in the record, and the disputed facts cannot be resolved without an evidentiary hearing.

Every rule has an exception and the exception to this rule is that the DCA will consider an IAC claim on direct appeal when there is no genuine dispute of material facts and the DCA can resolve the claim as a matter of law.

Now let’s take a look at the defendant’s case and assume that O’Mara does not file a motion asking Judge Nelson to find the defendant indigent and authorize the appointment and compensation at public expense of an investigator and such experts as may be reasonably necessary to assist defense counsel in presenting a defense.

Let’s further suppose that O’Mara does not call any expert witnesses and the jury convicts the defendant.

Can the DCA decide an IAC claim on direct appeal?

Answer: Probably not, because an evidentiary hearing would have to be conducted to determine if the outcome of the trial probably would have been different, if the defense had presented the testimony of certain expert witnesses, who I am assuming would exist for the purpose of this demonstration. The identities of those witnesses and their testimony would not become known unless habeas counsel did what O’Mara did not do.

Under this set of circumstances, the IAC claim would have to be raised in a state habeas petition after the conviction was affirmed on direct appeal. The habeas petition would be granted, if we assume for the sake of argument that the standard of practice would have been to obtain an order of indigency appointing experts at public expense, that expert testimony would have materially supported the defendant’s claim of self-defense and the defendant probably would have been acquitted if the experts had testified.

At this point there are too many unknowns to predict an outcome, except to say that a murder conviction appears likely, given the evidence that has been released to the public.

Now, let’s tackle Xena’s question about which experts I would consult, if I were representing the defendant.

I would consult with a pathologist to review the autopsy report and the AME’s findings regarding the entry wound, trajectory of the bullet, and the distance between the muzzle of the gun and the entry wound when the shot was fired. I also would discuss what the evidence shows relative to the positions of the victim and the shooter when the shooter fired the fatal shot. I also would want to know if the pathologist disagrees with anything in the autopsy report and whether the defendant’s statement to police describing the shooting is consistent or consistent with the autopsy report. Finally, I would ask about the length of time the victim would have remained conscious after the shot, whether he could have said anything, and positional asphyxiation as a contributing factor to cause of death.

I would want to consult with a firearms expert to discuss the weapon used, the fatal shot, and whether the defendant’s statement about how he fired the fatal shot is consistent with the evidence. I also would want to review the crime lab analyst’s report and bench notes regarding the bullet holes in the sweatshirts and whether they align with the entry wound.

I would follow Lonnie’s advice and look for a kinesiologist or someone in a related field to discuss the relative positions of shooter and victim when the fatal shot was fired.

Next up, I would want to discuss the defendant’s injuries with a trauma surgeon, blood spatter expert, and DNA expert.

Consulting with an expert on GPS tracking would be high on my list as would consulting with an audiologist about identifying the person who uttered the shriek.

I probably also would have the defendant undergo thorough psychological testing because I suspect he may suffer from some kind of organic brain disorder that may affect perception and functioning.

I probably would consult with other experts, but that is all that comes to mind right now. This post has reached 1,000 words, so I am going to wrap it up and reserve further discussion for the comments.

The steps I have described here regarding consultations with experts in a case like this are what I would consider to be the standard of the profession. A failure to pursue and document this line of inquiry would fall below the standard and constitute ineffective assistance of counsel. To establish a valid IAC claim, however, the defendant would still have to establish that the result of the trial would probably have been different if counsel had done these things, discovered material evidence in his favor, and presented it at trial.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

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O’Mara out of time in Zimmerman case

April 16, 2013

Tuesday, April 16, 2013

Abbyj said,

Omar will ride the PayPal buckaroo to the bitter end in an effort to squeeze out every last cent. He is hoping for a massive windfall, as fogen received early on. Without any hope of a great fortune appearing, O’Mara will then stand before Judge Nelson, wring his hands, and whine, “I haven’t had the financial resources to hire experts . . . ” Could fogen use this as grounds for an appeal?

Good question.

We begin at the beginning. Appellate courts hate piecemeal appeals. With one notable exception, they will refuse to review a case unless the circuit court has entered a final judgment terminating it. The exception is the writ procedure that permits a party to seek extraordinary relief from a specific order issued by a judge in the circuit court that, in effect, functions as a final order in a case depriving the losing party of an opportunity to present its case and argument in the circuit court.

The defense used the writ procedure to recuse Judge Lester (mandamus) and is now using it (certiorari) in an attempt to get an order vacating (setting aside) Judge Nelson’s order denying the defense motion to depose Benjamin Crump. I do not believe this effort will be successful because I think Judge Nelson made the correct legal decision. Since other witnesses were present when Crump interviewed Dee Dee to determine the cause of Trayvon’s death on behalf of his clients, Tracy Martin and Sybrina Fulton, his efforts constitute protected attorney work product that is not subject to disclosure. Moreover, the defense team cannot show they were prejudiced by Judge Nelson’s order because they can interview Dee Dee and the witnesses who were present. Therefore, Judge Nelson’s decision is not a final judgment or order that functioned like a final judgment by depriving the defense of its only opportunity to discover potentially favorable information for the defense.

With regard to your specific question, the defense would have to file a motion requesting some form of financial assistance from the court to pay for something that the defense has a right to do, but cannot afford to do. The defendant has a Sixth Amendment right to effective assistance of counsel at public expense, if he cannot afford counsel. The right to effective assistance of counsel at public expense, includes paying reasonably necessary expenses for investigators and expert witnesses.

Mark O’Mara and Don West have agreed to work pro bono, so they will not be asking the court to compensate them for the time they spend working on the case. However, their agreement to work pro bono does not mean that they also have agreed to pay the costs that will be incurred to defend their client. Specifically, the court cannot require them to pay experts and investigators.

The internet donations were supposed to cover those costs. According to O’Mara, however, the defense is underwater by approximately $10,000. I doubt that includes the $28,000 claim for services rendered by the security company, unless O’Mara has paid down the balance. Therefore, the defense may be in more serious financial trouble.

Judge Nelson cannot do anything unless O’Mara files a motion. An appropriate motion would be to ask her to enter an order declaring the defendant indigent and entitled to the reasonably necessary assistance of investigators and experts at public expense. Such a motion would have to be supported by a detailed financial statement or tax return submitted under oath. Given the substantial sum of money donated to the defendant via the internet (possibly approaching $500,000) that somehow disappeared and the defendant’s “potted plant” behavior at his bail hearing last summer when his wife under oath denied knowing that he had any assets just a few days after she transferred over $100,000 from the internet account into her personal account via his personal account pursuant to his specific instructions, I think Judge Nelson would refuse to accept anything at face value. I think she would insist the prosecution review the documentation or she might appoint a special master to review it, if the defense were to object. I think the defendant and his lawyers could safely assume that any irregularities would result in additional criminal charges.

If Judge Nelson were to deny the motion to declare the defendant indigent, her denial could be challenged on appeal. The issue would be whether she abused her discretion in denying the motion. In turn that would depend on the sufficiency of the documentation supplied by the defense.

To properly preserve this issue for appeal, the defense would have to ask Judge Nelson to reconsider her denial of his motion to appoint an investigator or an expert at every available opportunity. A failure to provide a road map in the trial transcript of requests to reconsider supported by specific reasons why an investigator or expert was reasonably necessary at that particular time might be fatal. For example, the DCA might agree that Judge Nelson abused her discretion by denying the request for indigency, but find that the error was harmless absent sufficient documentation of the harm to the defense caused by the denial.

If Judge Nelson were to grant the motion, O’Mara would have to submit ex parte motions to appoint specifically named individuals to do specific things. She would probably appoint one investigator. The number of experts she would be willing to appoint would depend on the relevance of their area of expertise to the subject matter at issue in the case. The rate of compensation would be at the reduced rate that the court has established for appointed cases.

If the jury were to convict the defendant and O’Mara failed to hire an investigator or an expert to assist in preparing for trial and putting on a defense, his failure to do those things could be raised in a state habeas petition after the appeal is unsuccessful. Habeas petitions are based on evidence that is not in the record and typically are based on defense counsel’s failure to do something that he should have done. The failure asserted in this instance would be the failure to hire an investigator or expert. If that happened due to lack of money and O’Mara did not ask Judge Nelson to find the defendant indigent, the claim would be that he provided ineffective assistance of counsel by failing to make the request.

In order to prevail, habeas counsel would have to convince the court that O’Mara’s conduct was deficient according to prevailing standards of conduct and that, but for the deficiency, the result of the trial probably would have been different.

It takes time to assemble a team of experts and investigators and it takes additional time for them to complete their assignments. O’Mara should have assembled his team before Thanksgiving. The trial is scheduled to begin in less than 60 days and the defense fund is underwater $10,000.

Even if Judge Nelson were to enter orders tomorrow finding the defendant indigent and appointing an investigator and experts, all financial compensation would be limited to services provided in the future.

Given that dire financial situation, plus one unhappy creditor having already sued O’Mara alleging that he has refused to pay $28,000 for services provided, I doubt anyone will invest any time or effort to help O’Mara without a substantial retainer up front.

Such is the nature of the criminal defense business.

Just like his client, he is out of time.

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Gloom in Mudville: The defense is upside down by $10,000

April 15, 2013

Monday, April 15, 2013

Greetings to everyone.

The defense is falling apart.

In the latest issue of Zimsanity News, which is my handy new way of referring to propaganda information about the legal case released by Mark O’Mara or information about the defendant’s clueless family released by its official spokesperson, Robert Zimmerman, Jr., we find out that Mark O’Mara wants the settlement agreement opened up for public review, including the settlement amount.

Ben Crump is OK with publicizing the agreement, but he wants the settlement amount to remain confidential.

Meanwhile, O’Mara announced on Friday that the defense fund is upside down by about $10,000. That’s bad news for the defense team with only 56 days left until trial.

Could this mean that the defense might be on the verge of tossing a white handkerchief into the ring, if the Court of Appeals denies the writ?

Possibly, because insufficient funds to try the case the way it should be tried is often cited by private counsel as the reason for a last minute guilty plea.

Do I have any evidence that such discussions have taken place?

No, I do not.

I discussed the lack-of-money problem a couple of months ago and suggested that the defense should consider filing a motion asking Judge Nelson to declare the defendant indigent. That would assure that all reasonably necessary defense expenses for deposition transcripts, investigators and expert witnesses would be paid by the court. No fuss, no muss regarding unpaid bills. That would certainly lighten the stress load.

Not so fast, you say?

Well, you’re right. O’Mara’s plea for more money from donors brought in approximately $60,000, but I gather that donations have slowed to a trickle.

Will another plea for money prime the pump, so to speak, and avert the looming financial crisis?

Maybe.

Maybe not.

If O’Mara cannot pull another financial rabbit out of his hat, he will have to ask Judge Nelson to declare the defendant indigent. However, given how quickly the defense blew through the $60,000 I cannot help but wonder if the defense has mismanaged the donations by spending far too much money for the defendant’s living and security expenses. I have not kept a tally but IIRC, they’ve blown through close to a half million by now and more than half of that money was spent on living and security expenses.

I think Judge Nelson would be required, as a matter of law to declare the defendant indigent, if he can satisfy her that he truly is indigent, even if he is responsible for having attained pauper status by spending too much money on non-essential items.

Bottom Line: O’Mara needs to take action to solve this problem ASAP because the longer he waits for the money to start flowing again, the more incompetent and irresponsible he will appear to be. That is exactly the wrong message to be broadcasting this close to trial, especially after he basically waived the “sure thing” immunity hearing and we now know that the HOA was not buying the narrative he was pushing on the public.

After all, why would potential donors remain willing to contribute money, if the defense failed to manage previous donations responsibly and O’Mara blew his credibility with donors when he waived the immunity hearing that was supposed to be such a sure-thing?

Those two circumstances might very well turn out to be death blows to the defense.

And then there is the message from Gladys blaming the public for the decision to charge the defendant with second degree murder.

I am going to pass on criticizing a mother for defending her son.

She is entitled to her opinion.

I base my opinion on the evidence.

The case is starting to smell like decomp to me.

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