Tuesday, November 19, 2013
Watch the Zimmerman bail hearing live via live stream and comment below.
The hearing is scheduled to begin at 1:30 pm EST.
For those who missed the hearing, you can watch it here on youtube.
Tuesday, November 19, 2013
Watch the Zimmerman bail hearing live via live stream and comment below.
The hearing is scheduled to begin at 1:30 pm EST.
For those who missed the hearing, you can watch it here on youtube.
Friday, March 29, 2013
Good morning, everyone!
I bow down in absolute awe of Bernie de la Rionda’s epic Shakespear-style smackdown late yesterday of the defense team, their internet troll advisers, and the reporters at the Orlando Sentinel who labor so diligently to spread the defense message. I have never read anything like it and it’s so perfect that I think I would only diminish its impact were I to cut and paste bits and pieces of it into a new post.
It’s as close to perfection as I think is humanly possible and Bernie de la Rionda deserves all of the credit for producing this gem.
Make no mistake. Bernie de la Rionda’s masterpiece is so superior to any other formal written legal argument that I have read or heard about that I believe it will achieve immortality as an example of the elegant smackdown.
In other news yesterday, on Monday Judge Nelson issued without a hearing a terse three sentence order denying the defendant’s motion for reconsideration and clarification of her previous order denying the defendant’s motion to depose Benjamin Crump. The defendant’s supporters are in an uproar because Judge Nelson did not conduct a hearing or provide an explanation or justification for the order.
I held my breath and performed a quick survey of comments posted at right-wing websites to get an idea of what they are saying. I saw comments asserting the existence of a conspiracy against the defendant and his lawyers to rig the outcome of the trial so that the innocent defendant is convicted. President Obama is supposedly telling Judge Nelson what to do and she is in cahoots with Bernie de la Rionda to achieve the desired outcome. The lack of a hearing and the absence of a written opinion supporting her order are cited as proof that this conspiracy exists.
They apparently do not realize that judges are not required to hold a hearing before deciding whether to grant a motion to reconsider a previous order. They also appear not to know that the standard practice nationwide in state and federal courts is for judges to summarily decide motions to reconsider by granting or denying them without further explanation.
Needless to say, evidence of judicial compliance with a standard practice is not evidence of a conspiracy to deny the defendant a fair trial.
Finally, did y’all notice BDLR’s comments about O’Mara’s behavior at the the first bail hearing. That was quite a dramatic and disquieting shot across O’Mara’s bow introducing the possibility that O’Mara might be prosecuted for his role in assisting his client to conceal assets and a second passport from Judge Lester at the hearing.
If I were O’Mara, I would take that threat seriously and consult with counsel before deciding whether to respond.
Of course, the prosecution would have to prove beyond a reasonable doubt that he knew and acted with intent to deceive Judge Lester at the bail hearing about the second passport and the thousands of dollars that had been donated to his client via the Paypal account. I suspect BDLR decided not to pursue that matter last year because he realized that he would need solid and convincing evidence to independently confirm the defendant’s disclosures in the recorded jailhouse phone calls.
BDLR knows that the defendant is an habitual liar and no jury would convict O’Mara on his word alone. He is certainly smart enough to realize that his emotional response to O’Mara’s frivolous accusations is not a legitimate factor to consider in deciding whether to charge O’Mara with a crime. This leads me to ask what has changed since last summer that would independently confirm that O’Mara knew about the money and the second Passport at the time of the hearing?
Has Shellie Zimmerman flipped on George Zimmerman and provided the missing link?
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Tuesday, March 5, 2013
Before the beginning of today’s hearing in the Zimmerman case, the prosecution informed the defense that Dee Dee (the name given to Trayvon Martin’s girlfriend to protect her anonymity) did not go to a hospital instead of attending Trayvon’s funeral.
Judge Nelson dismissed the defense motion for Dee Dee’s medical records as moot.
The defense now claims that Dee Dee lied.
As the following partial transcript of her interview under oath by prosecutor Bernie de la Rionda conclusively demonstrates, she not lie or commit perjury.
BDLR:_ OK._ I’m not saying that they did._ I’m just making sure the records’ clear on that….Um…you obviously found out about what happened to Trayvon, right?_ And at some point you ended up knowing that he was killed, right?
Dee Dee:_ Yeah.
BDLR:_ Were you able to go to the funeral or to the wake?
Dee Dee:__I was goin’ to go, but…
BDLR:_ OK, what happened?
Dee Dee:__I didn’ feel good.
BDLR:_ OK, did you end up going to the hospital or somewhere?
Dee Dee:_ Mmmm…Yeah, I had high blood pressure.”
The question is unclear because he asked if she went to a hospital or somewhere.
Therefore, her answer was not a lie and if it was not a lie, it certainly was not perjury.
Nevertheless, let us assume for the sake of argument that she did lie.
As I said in response to a comment by Unabogie,
I think you are being way too literal.
Lying is lying, by definition, but there is an unlimited number of reasons why people lie.
Intentionally lying to conceal the existence of more than a $100,000 in cash from the court during a bail hearing is, by any standard one might choose to apply, a far more serious matter than lying because you did not want to admit that you were too upset to attend a funeral.
I do not believe the prosecution is the least bit worried about this turn of events.
Proof of perjury requires proving beyond a reasonable doubt that the defendant unambiguously lied under oath about a material matter.
BDLR’s question was ambiguous and DD’s response was not about a material matter, as is the case regarding Shellie Zimmerman’s denial under oath during a bail hearing that she did not know about the money she had transferred into her account.
Therefore, even if we assume for the sake of argument that Dee Dee lied, she did not commit and will not be charged with perjury.
Anyone who says she lied and committed perjury is mistaken and anyone who claims that Dee Dee is as guilty of perjury as Shellie Zimmerman is wrong and guilty of asserting false equivalencies.
As I said in an earlier comment this morning before I saw the transcript, I do not believe this development today changes anything.
I predict DD will be one of the last witnesses called by the State after all of the evidence about the shooting and the events that led up to it have been admitted into evidence.
She will simply be confirming what the evidence has already proven. BDLR will ask her about the false statement and she will probably break down and cry as she admits that she lied about that because she was too embarrassed to admit that she was too upset to attend the funeral.
I think the jury and everyone in the courtroom, except the defendant, will understand that and forgive her for lying.
I believe Sybrina will be the last witness because she is Trayvon’s mom and the emotional impact of her testimony will be extremely powerful.
After all is said and done, I do not think anyone will remember, much less care, that DD lied. It’s just not very important.
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hat tip Xena at frederickleatherman.com for turning my attention to this. This is also posted at Firedoglake in the MyFDL Reader Diaries, and at froggravy.wordpress.com
This is the best documentary I have ever seen, that I never want to see again. For those who are not familiar with this film or with this case, it is heartbreaking, and yet it brings to light important issues in a flawed legal system. The film is also about love, survival and activism.
In 2001, Dr. Andrew Bagby was found murdered in his scrubs, in a park in Latrobe, PA. He was an only son of very loving parents. He had an astonishing extended family of friends and relatives, spanning the continent from California where he lived as a boy to Newfoundland, Canada, where he attended medical school. He had been shot five times, in the face, head, chest and buttocks. Andrew Bagby was 28 years old.
Dr. Bagby had just ended a relationship with another doctor, Shirley Turner, who he had met in Newfoundland. Her possessiveness and inappropriate behavior had become burdensome. He put her on a plane back to her home in Iowa, but she immediately returned to Pennsylvania by car. Evidence quickly indicated Shirley Turner as the suspect in Andrew Bagby’s murder. Shirley Turner was 40 years old.
Shirley Turner fled to Canada, where she had initially met Andrew Bagby. In Canada, she was arrested on suspicion of pre-meditated first degree murder. She was also pregnant with Andrew Bagby’s child. She was released on bail immediately.
She had the child and named him Zachary. Zachary looked like Andrew had looked, when he was a baby. Andrew’s distraught parents began a heartbreaking fight for visitation and custody of Zachary. The grandparents loved the boy and endured the likes of strip searches for each cherished hour that they spent with him. They were forced to stomach a relationship with their son’s likely murderer, to have what few hours they did get with the boy.
Shirley Turner was arrested a second time and held pending extradition to the US to face the murder charge. She appealed the extradition and during the pendency of the appeal, she was awarded custody of the child and allowed to go free. The Canadian court found her to be neither a risk for flight nor a risk to the safety of her community.
What happened next was unimaginable.
Andrew Bagby’s close friend Kurt Kuenne, who was a filmmaker, made a documentary of this story. The National Board of Review of Motion Pictures named the film one of the five top documentaries of the year. Among those who named it one of the best films of 2008 were Time Out Chicago, The Oregonian, the Times Herald-Record, Slant Magazine, and WGN Radio Chicago. The website Film School Rejects place the film in third place in their 30 Best Films of the Decade list. The Film Vault included the film on their top 5 good movies you never want to see again. Source.
The film’s trailer is here:
The full-length documentary film by Kurt Kuenne is here:
Seminole County Circuit Court Judge Kenneth Lester set bail today at $1 million in the George Zimmerman case.
This means that unless Zimmerman has $1 million to post with the Clerk of the Seminole County Circuit Court to secure his release, he will have to pay a bail bondsman $100,000 (the 10% non-refundable fee charged by the bail bondsman to post the company’s bond or promise to pay $1 million to the court if Zimmerman rabbits on the bond). The bail bondsman also will require Zimmerman to secure the bonding company with cash and/or property worth $1 million.
Real estate is typically used to secure a bond this high and, unless Mark O’Mara already has a person or persons lined up with equitable interests in their real estate greater than $1 million, it may take awhile to put a deal together that satisfies the bonding company. A current appraisal of the properties reliably indicating their fair market value, reports on the financial status of any loans secured by those properties and a title report are normally required.
As y’all know, I would have issued an order denying bail based on Zimmerman’s role in misrepresenting to the court that he was indigent while at the same time he conceived and directed the efforts of at least two family members (his wife and sister) to carry out a scheme to conceal his possession of $155,000 donated to him over the internet by transferring the money into their accounts before his bail hearing and transferring it back into his account after he bonded out.
Although Judge Lester characterized Zimmerman’s misconduct in substantially similar language, including a reference to Zimmerman’s failure to surrender the second passport such that it would not have been unreasonable for the court to have concluded that Zimmerman carried out this fraudulent scheme with the intent of fleeing the country, he decided to increase the bail substantially rather than deny bail because the State of Florida had not charged Zimmerman with any crime.
I interpret his decision as sending a message to the prosecution basically telling them that he does not believe he should deny bail to Zimmerman unless they charge Zimmerman with a crime. He even mentions a charge of criminal contempt as one possibility.
I have written about the possibility of charging Zimmerman with perjury based on his conduct directing his wife’s efforts to hide the money from the court. Her perjured denial under oath of any knowledge regarding how much money had been received from donors via the internet is but a natural and reasonably foreseeable consequence of Zimmerman’s scheme to conceal the money from the court. Nevertheless, convicting him of perjury on an accomplice theory may be difficult without his wife’s assistance and willingness to testify that he told her to lie to the court, if the judge or the lawyers asked her if she knew how much money had been donated.
If the prosecutors want George Zimmerman to be in jail for the duration of this case, they should not have any doubt as to what they must do to secure that outcome.
Meanwhile I do not believe Judge Lester’s order can reasonably be interpreted as an expression of doubt regarding the strength of the prosecution’s case against Zimmerman for killing Trayvon Martin. He explained that he initially found that the prosecution’s case was “strong” because the defendant did not testify at the first bail hearing and the defense did not present any evidence of self-defense. He also specifically characterized the evidence presented by the defense at the recently concluded bail hearing in support of Zimmerman’s claim of self-defense as having “little relevance” to the issue of bail.
Therefore, I caution against assuming that Judge Lester has formed an opinion or reached any conclusions regarding the viability of Zimmerman’s claim of self-defense.
CherokeeNative posted a comment asking me whether Zimmerman’s statements to police and others will be admissible during the trial.
CherokeeNative said the prosecutor mentioned in court recently that the defense will not be permitted at trial to introduce any of Zimmerman’s statements to police and others. Instead, Zimmerman will have to take the stand and testify, if he wants to present his defense.
I did not watch the hearing, but I imagine the prosecutor was expressing some understandable frustration that O’Mara has been trying his case during a bail hearing, instead of specifically explaining why Zimmerman should be permitted to secure his release by posting another bond after conspiring with his wife to materially deceive the court by claiming indigency when they knew he had received approximately $150,000 donated to his PayPal account at his internet site. The prosecutor wants to cross examine Zimmerman about about all of his coded machinations to, in essence, play a shell game with the court to hide the money. No doubt he’s also tired of O’Mara’s constant repetition of Zimmerman’s statements to police and his claims that Zimmerman’s injuries establish the truth of those statements.
He no doubt knows more than we know and we know that Zimmerman lied. Therefore, I can understand his frustration. Nevertheless, he will get his chance, so he will have to be patient.
Okay, put on your waders because we are about to trek through a muddy swamp called the hearsay rule.
First, every oral or written assertion, including non-verbal conduct, if intended as an assertion, that George Zimmerman made outside the courtroom regarding what happened in this case is hearsay, if offered by the defense at a hearing or during the trial to prove that whatever he asserted is true.
Why? Because hearsay is defined in evidence rule 801 as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Second, hearsay is not admissible, unless pursuant to another evidentiary rule or exception.
The effect of these rules means that a defendant in a criminal case cannot introduce at a hearing or at trial a prior statement that he made, if he offers the statement to prove what he asserted in the statement.
Example: A detective is testifying in a bank robbery trial and the defense attorney asks, “My client told you that he was at work that day and did not rob the bank, didn’t he?”
The question is improper because it’s being offered by the defense to prove that the defendant did not rob the bank.
What happens, however, if the prosecutor seeks to offer the statement because it can prove the defendant was not at work as he claimed?
Answer: The defendant’s statement is admissible because it’s an admission by the party opponent, who is the defendant in this hypothetical. See evidence rule 801(d)(2).
The purpose of the admission-by-a-party-opponent rule is to permit a party to introduce statements by the opposing party. To simplify that process, rule 801(d)(2) exempts such statements from the hearsay rule.
Bottom Line: None of Zimmerman’s statements to the police will be admissible at his trial, unless the prosecution offers them. Do not expect the prosecution to do that, unless it is offering them into evidence to prove that he lied.
Note that Zimmerman also made statements to various medical people.
Question: Are those statements admissible?
Answer: Yes, under evidence rule 803(4), provided his statements were made “for purposes of a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof as reasonably pertinent to diagnosis or treatment.”
Note that we are likely to see issues arise regarding the admissibility of any statement Zimmerman made to a medical person, if the statement contains an assertion about what happened during the confrontation and struggle (i.e., who did what to whom). That portion of his statement will fall outside the boundary of the medical-diagnosis exception to the hearsay rule, if it is not “reasonably pertinent to diagnosis or treatment.”
The purpose of this exception to the hearsay rule is to admit statements that are elicited in response to questions asked by medical personnel to diagnose and treat an injury or illness. The patient/defendant might make any number of statements about any number of things that are not “reasonably pertinent to diagnosis or treatment.” Such statements do not fall within the exception and would be excluded as inadmissible hearsay, if offered to prove the truth of the matter asserted in the statement.
I have no reason to believe that Judge Lester does not know the hearsay rule. Judges have considerable latitude to admit evidence at pretrial hearings, such as a bail hearing, that would not be admissible at a jury trial. Judges are presumed to know the rules of evidence and not base their decisions on evidence that they would not permit a jury to hear.
I believe Judge Lester is giving the defense wide latitude to present whatever evidence it wants to present because most judges I know routinely do that at pretrial hearings. The prosecutor is complaining because that is what prosecutors do to periodically remind a judge that the defense is wandering far afield instead of addressing issues specific to the hearing.
The specific issues I would ask the defense to explain, if I were the judge are:
1. Why did George Zimmerman misrepresent to the court that he was indigent and conspire with his wife, Shellie Zimmerman, to conceal from the court that he had received $155,000 from donors to his internet account?
2. Why should the court not conclude that he is a flight risk and cannot be trusted, given hisirresponsible judgment and egregious behavior in misrepresenting that he was indigent when he knew he was not indigent, and his decision to involve his wife and sister in a scheme to use their bank accounts to hide the $155,000 and to deny any knowledge about that money, if asked under oath, in order to conceal it from the court?
3. Doesn’t George Zimmerman’s irresponsible judgment and egregious behavior in involving members of his family in a scheme to falsely claim indigency, conceal $155,000 in assets, and lie about it, if necessary establish that he is a danger to others, if released.
I would deny the defense motion.
George Zimmerman is charged with second degree murder. His wife, Shellie Zimmerman was recently charged with perjury, based on her testimony at his bond hearing that she had no idea how much money he had received from donors posting money into his PayPal account at his internet website.
We know that she testified falsely because, following specific instructions that he gave her over the jailhouse phone during several recorded conversations, she transferred approximately $155,000 out of his internet PayPal account and into his personal account at a local credit union. She transferred that sum of money in amounts less than $10,000 and immediately repeated that process to transfer the money out of his account and into her personal account and his sister’s personal account at the credit union prior to the bond hearing on April 20, 2012. After he bonded out, she moved the money back into his personal account.
The apparent purpose of this scheme was to conceal from the court that $155,000 had been donated to him at his internet website. In furtherance of that scheme, Shellie Zimmerman parked the money in her personal account and his sister’s personal account, such that a casual account-balance inquiry by the court on the day of the bond hearing would show little money in the PayPal and his personal account.
He also failed to disclose the existence of and surrender a second U.S. passport issued to him. These acts appear to have been motivated by a desire to establish a secret escape route out of the United States on short notice, if things started going sideways in his case.
I recently wrote an article in which I mentioned that the prosecution might amend the information against him to add a perjury charge, but only if Shellie Zimmerman agreed to cooperate and identify him as the person who instructed her to deny knowledge of how much money had been donated to him in the PayPal account. The recorded jailhouse conversations that the prosecution has released do not contain such an instruction and for this reason I think the prosecution will have to play let’s make a deal with Shellie Zimmerman to provide the missing evidence.
Of course, I am assuming that he did instruct her to lie to the court, if asked. I am aware that he told her to tell the truth, but we know that they were advised that their conversations were being recorded and they used a code to conceal the amounts of money they were discussing. Their use of a code to hide $155,000 from the authorities coupled with her denial at the bond hearing of any knowledge about how much money had been received does not inspire confidence that he would have have answered that question truthfully, if asked. Under these circumstances, his recorded admonition to tell the truth appears to have been staged. He certainly made no effort through counsel to correct his wife’s false testimony.
The proper way for the prosecution to proceed, assuming it is interested in obtaining Shellie Zimmerman’s cooperation in prosecuting her husband for perjury, would be to contact her lawyer and ask him to submit a written summary or proffer of her testimony. If the proffer appears to be truthful and helpful to the prosecution case, it should extend a reasonable offer to settle her case conditioned on her cooperation and truthful testimony at trial.
Note that the prosecution does not have to charge him with perjury in order to introduce evidence at his trial about the perjury. Lawyers refer to this type of evidence as uncharged-misconduct evidence, which is admissible under Rule 404(b), if it shows consciousness of guilt.
Let us assume for the sake of argument that Shellie Zimmerman would testify that, for the purpose of creating an escape plan in the event that his case started going sideways, he organized and directed a scheme in which she actively participated to conceal $155,000 and his possession of a valid second passport from the Seminole County Circuit Court. That evidence would be admissible for the same reason that evidence of flight to avoid prosecution is admissible to show consciousness of guilt under Rule 404(b).
Yesterday, the prosecution released a copy of the information charging Shellie Zimmerman with perjury, the supporting affidavit of probable cause, and six recorded jailhouse phone calls between George and Shellie Zimmerman.
I. Shellie Zimmerman’s testimony under oath by telephone at George Zimmerman’s Bail Hearing on April 20, 2012.
A. Direct examination by Mark O’Mara:
After establishing that she and her husband are indigent, he asks
Q: … other major assets that you can liquidate reasonably to assist in coming up with money for a bond?
A: None that I know of.
Q: I have discussed with you the pending motion to have your husband George Zimmerman declared indigent for cost, have I not?
A: Yes, you have.
Q: And is — are you of any financial means where you can assist in those costs?
A: Uhm, not that I am aware of.
Q: I understand that you do have other family members present with you, and I’ll ask some more questions of them, but have you had discussions with them of at least trying to pull together some funds to accomplish a bond?
A: We have discussed that.
A: — trying to pull together the members of the family to scrape up anything that we can possibly can.
B. Cross examination by Bernardo de la Rionda
Q: And you mentioned also, in terms of the ability of your husband to make a bond amount, that you all had no money, is that correct?
A: To my knowledge, that is correct.
Q: Were you aware of the website that Mr. Zimmerman or somebody on his behalf created?
A: I’m aware of that website.
Q: How much money is in that website right now? How much money as a result of that website was —
A: Currently, I do not know.
Q: Do you have any estimate as to how much money has already been obtained or collected?
A: I do not.
II. Shellie Zimmerman’s money transfers from her account to George Zimmerman’s account from April 16 to April 19, 2012, a four-day period ending the day before the hearing.
$9,990 (X 4) = $39,960
$9,999 (X 2) = $19,998
$7,500 (X 2) = $15,000
More than $47,000 was transferred from George Zimmerman’s account into his sister’s account during the period April 16 through April 19, 2012.
III. On April 24, 2012 (four days after the hearing), Shellie Zimmerman transferred $85,500 from her account into George Zimmerman’s account. She had previously transferred that money from the Paypal account into her own account.
Total Transferred before and after the hearing: $160,458
IV. Recorded Jailhouse Conversations
The prosecution released six of the 155 recorded telephone conversations. The balance of the recorded conversations have been withheld pending the outcome of a motion by Mark O’Mara, who claims they are not relevant to the case.
The conversations contain coded references to the Paypal account as “Peter Pan” and amounts are referred in a primitive code where dollar amounts are really 10,000 times greater, as you can see below. George Zimmerman gives the orders and Shellie Zimmerman carries them out. For example, he instructs her how to access the accounts, how to make the transfers, and how much to transfer. He also tells her what bills to pay and checks back later to make sure she did it.
April 16, 2012 @ 2:26 pm
GZ: In my account do I have at least $100?
GZ: How close am I?
SZ: There’s like $8. $8.60
GZ: So total everything, how much are we looking at?
SZ: Uhm, like $155
The actual sum on that date was $155,000
There is no defense to the perjury charge and I am surprised that the prosecution did not also charge George Zimmerman with perjury as an aider and abettor.