If You Open Your Mouth, I Will Kill You With My Bare Hands

December 5, 2012

Wednesday, December 5, 2012

Top O’ the Mornin’:

I settled on this heartwarming expression of affection today because I’ve said it to more than a few clients in the past to emphasize the importance of not talking about their case and it’s probably pretty close to what Jose Baez told Chris Serino recently.

Notice that we have not heard anything from Serino since we found out that he had retained Baez.

Every good criminal defense attorney prefers a wide open playing field with multiple options available to get around immovable evidentiary obstacles created by the client’s acts. Pity Mark O’Mara whose client added to that forest of obstacles with an impenetrable thicket of thorns composed of multiple inconsistent and conflicting statements.

Ay, Dios mio.

Hence, the Third Commandment:

The Third Commandment is thou shalt not fail to do everything within your power to silence your client because the prosecution can use everything he says about the case against him.

If you cannot shut him up, thou shalt withdraw from the case.

His problem is simple to explain, but not easy to solve.

Everywhere he looks, he sees a sign that reads, “You can’t get there from here.”

“There” being the fabled promised land of “Not Guilty,” on the other side of the vast forest and thicket of thorns and here being here, damn it, stuck on this side with the forest and thicket in between.

Aha, he thinks maybe he can get to the promised land by taking the road less taken.

Yep, Chris Serino did not want to charge the defendant and he is an honorable man.

Chief Bill Lee did not want to charge the defendant and he is an honorable man.

Norm Wolfinger decided not to charge the defendant and he is an honorable man.

Plus, they have that early Halloween photograph of the defendant costumed as a vampire in an orange jacket with the rubber nose that turns color and swells or shrinks on command.

There is a reason why it’s called the road less taken.

I wrote recently,

A focused police search for evidence to support a decision not to charge a person with a crime in a suspicious death case before an investigation has been completed is an example of a preordained conclusion in search of a factual basis to support it.

That is a cover-up, not a competent police investigation.

First, as I have said before, the opinions of the police and prosecution officials regarding the guilt or innocence of the accused in a criminal case are irrelevant and inadmissible. They are not evidence and Judge Nelson is not going to permit Serino, Lee, Wolfinger or anyone else to testify about their opinion and why they believed the defendant should not have been charged.

Second, the FBI is investigating the Sanford Police Department for possible civil rights violations and those three individuals together with others are likely subjects, if not targets, of that investigation. Therefore, they need to lawyer-up as Serino has done and keep their mouths shut.

Third, if they were to speak and tell the truth, they probably would admit that he should have been charged, but was not charged due to racist or other improper considerations. For example, Serino might say, “Yeah, the drone was guilty as sin and I was having one helluva time trying to figure out how to please Wolfinger and the Chief until Wagner and I came up with idea to photoshop the photo Wagner took. We about laughed ourselves sick painting that blood on his lips. Dweeb looked like a freakin’ vampire.

Fourth, if they lie, they likely will be looking at a perjury charge.

Fifth, oh well. You get the picture.

Desperation rarely produces sound decisions.

Like I said,

There is a reason why it’s called the road less taken.

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Zimmerman: Why I am so Critical of SPD Investigator Chris Serino

November 21, 2012

Some of you have expressed support for SPD Investigator Chris Serino. I respectfully disagree.

I believe he should have been fired for tampering with witnesses during the first night of the investigation by “correcting” witnesses who had identified Trayvon Martin as the person who uttered the terrified shriek. He informed them that the investigation had established that George Zimmerman uttered it. This is absolutely unacceptable.

No competent professional investigator should ever under any circumstances correct a witness’s testimony to support the police theory of the case. This is police misconduct and it is one of the major causes of wrongful convictions of innocent people.

We see it most often when the police have a particular suspect in mind and attempt to build a case against him, despite a lack of evidence, by “correcting” eyewitnesses who identified someone else and suggesting that their investigation has identified a different suspect as the perpetrator of the crime. Eager to assist the police to arrest and convict the “right” suspect, the eyewitnesses will often change their minds and identify the person whom the police have selected as the correct choice. The person is convicted and occasionally sentenced to death, assuming it’s a death penalty case. Years later, however, the defendant is exonerated by post-conviction DNA testing.

In such a case, “correcting” the witness or suggesting whom the witness should select causes multiple harms. The first, of course, is the wrongful conviction of an innocent person and the resulting destruction of their life. The second harm is even worse because it allows the perpetrator to remain free to commit more crimes. Therefore, the practice of “correcting” witness identifications or testimony to support the police theory of a case against a particular suspect has been universally condemned and every police officer in the country has been warned not to do it.

Nevertheless, some police officers with the occasional approval of a prosecutor have persisted in this discredited practice to make sure they get the “right” bad guy. So the wrongful convictions keep on happening and the innocent person languishes in prison or is executed, if it’s a death penalty case. The possibility of a post conviction exoneration by a DNA test is only available in cases where there is biological evidence to test. Most cases do not have biological evidence to test. Wrongfully convicted innocent people in those cases have no remedy except by filing a direct appeal or a habeas corpus petition. Their efforts are rarely successful because they have no way to prove their innocence.

I believe Serino may have saved his job by unexpectedly filing the capias recommending that State’s Attorney, Norm Wolfinger charge George Zimmerman with manslaughter. His request was rejected because Wolfinger had already decided not to charge Zimmermman. Nevertheless, Serino looked good for recommending Zimmerman be charged.

I give Serino a lot of credit for determining which way the wind was blowing and adjusting quickly to the shift in direction.

That talent enabled him to shift from aggressively steering the investigation in Zimmerman’s favor by tampering with witnesses that first night regarding who was screaming to interrogating Zimmerman during the next few days in a manner that allowed him to plausibly tell his supervisors that he was assisting Zimmerman to get his self-defense claim together, but nevertheless leaving him room to claim that he was just leading him on to build trust and get him to make damaging admissions, if the wind changed and people demanded to know why he was being so supportive and agreeable while he was interrogating Zimmerman.

Seems to me that Serino is a master politician in the department capable of convincing everyone he is their loyal friend even as he holds his cards close to his chest and quickly adjusts to align himself with whomever holds the power at any particular time.

I do not trust people like that and one of the primary reasons why my opinion is so harsh is due to the way he questioned Tracy Martin about the terrified shriek.

In the same interview when he showed him a photograph of Trayvon’s dead body and asked him if he could identify it, which is standard procedure, he played a recording of the 911 call with the terrified shriek in the background and asked him if he was 100% certain that was Trayvon screaming.

This was not the right time or the proper way to question him about the shriek. Wanting to help the investigation but obviously shocked and dismayed by the completely unexpected news that his son had been shot to death in Brandy Green’s supposedly safe gated community, Tracy Martin answered “No.”

Instead of waiting for another time after Tracy Martin had adjusted to the shock of Trayvon’s death and was prepared to focus on providing complete information about Trayvon, Serino ambushed him with a question demanding certainty in the form of a specific “yes” or “no” answer. In my opinion, the form and timing of that question strongly suggests that Serino was fishing for a no answer instead of just asking him to listen carefully and indicate whether he thought Trayvon uttered the scream.

Serino must have known that Trayvon very likely uttered the shriek because it sounds like a young person screaming in terror and it ended abruptly with the fatal gunshot. Because Zimmerman had the gun and fired the fatal shot, he had no reason to shriek in terror and stop shrieking at the same instant that he pulled the trigger.

If Tracy Martin had been provided with a reasonable opportunity to collect his wits and think about it, he would have realized the same thing. In fact he has changed his mind and stated that he is now certain that Trayvon uttered that awful shriek.

But the damage has been done and now he can reasonably expect to be confronted at trial with his initial denial and accused of changing his mind to get back at Zimmerman for killing his son. Is it not awful enough to have to reopen wounds and testify about losing your beloved son? Why should he also have to endure being called a liar because, given the nature of the question he was asked, he at first he denied that Trayvon was screaming. He will fear that the jury will not believe him and he will suffer terrible anxiety and guilt that he failed his son when his son needed him. If Zimmerman is acquitted, he will likely believe to the end of his days that Zimmerman would have been convicted, if only he had not failed his son.

This situation never should have happened. Serino did an awful thing to a father in terrible pain by taking advantage of his vulnerability to obtain a “no” answer that would support Zimmerman’s claim of self-defense at a time in the investigation when it should have been apparent to him that Zimmerman’s claim of self-defense was falling apart. I am shocked by his lack of empathy and willingness to take advantage of a grieving father to get what he wanted.

An investigator is never supposed to be an advocate defending a suspect in a homicide investigation, particularly in the early stages of the investigation before much is known. That is inexcusable and he is fortunate that I will not be cross examining him about how he conducted that investigation.

He certainly made the right decision when he decided to retain counsel and the other police officials including Chief Bill Lee would be well advised to do the same.

They had better not count on Serino refusing to turn on them if push comes to shove and he is accused of a state or federal crime based on how he conducted the investigation.

I do not believe he will go down without taking others down with him and, in fairness to Serino, he was probably ordered to do what he did.

Stay tuned for continuing developments because this fascinating aspect of the case is heating up.

Zimmerman: Chris Serino Retains Jose Baez for Deposition

November 20, 2012

Frances Robles of the Miami Herald reported yesterday that SPD Investigator Chris Serino has retained attorney Jose Baez to represent him at his upcoming deposition by the defense in the George Zimmerman case.

He has a right to be represented by counsel and, under the circumstances, I believe he did the right thing.

Let us take a look at the circumstances to appreciate his predicament.

Zimmerman’s lawyer, Mark O’Mara, announced in his recent motion for a prophylactic sequestration of witnesses that he intends to question SPD officials supervising Serino’s investigation of the Martin homicide regarding why they decided to recommend against charging Zimmerman with a crime.

We know that during the first night of the investigation Serino “corrected” several witnesses who told police that the boy (i.e., Trayvon Martin) uttered the terrified shriek that abruptly ended with a gunshot to his heart. He told them that the police had determined that the shooter uttered the shriek.

We also know that Zimmerman’s vehicle, which Zimmerman claimed to have parked on Twin Trees Lane close to the sidewalk cut-through to Retreat View Circle, was not checked for evidence and Zimmerman was permitted to clean-up in the lavatory while unsupervised at the station house prior to being questioned by Investigator Doris Singleton. In addition, no one asked him for permission to take a blood or urine sample for subsequent testing for the presence of alcohol or drugs.

Someone in a position of authority in the department that first night, presumably Serino, before police had identified the shooting victim as Trayvon Martin, decided not to arrest Zimmerman for investigation of homicide even though the unidentified victim was “armed” only with a can of iced tea and Skittles. Zimmerman had the gun and police knew from Zimmerman’s recorded NEN call that, despite being told not to follow the victim by the dispatcher, he must have followed and attempted to prevent the victim from getting away mere minutes before the police arrived to investigate his call. They also knew that despite his claim of self-defense, his injuries were minor and not life-threatening.

Based on the information available to the police that first night, coupled with Serino’s apparent effort to influence witnesses to change their statements to support Zimmerman’s claim of self-defense, the decision not to arrest Zimmerman was and remains extremely controversial, not only with the public, but within the department, as a group of Black police officers subsequently protested the decision.

The police only needed probable cause to arrest Zimmerman for investigation of homicide. Probable cause means reasonable grounds to believe that a crime was committed. It is an objective test based on the totality of the circumstances; namely, whether a reasonable person or police officer was aware of sufficient facts and circumstances that first night to conclude that it was more probable than not that Zimmerman did not kill Martin in self-defense. Probable cause is not proof beyond a reasonable doubt or even proof by a preponderance of the evidence. It is a mere threshold requirement to justify detaining a suspect for further investigation.

I believe they had probable cause to arrest that first night and I suspect they did not arrest Zimmerman because they assumed the unidentified victim was a Black gangsta on the prowl looking for a house to burglarize. Never mind that this Black gangsta was unarmed carrying only iced tea and Skittles. Never mind that this was a Sunday night between 7 and 7:30 pm when most people are at home. Never mind that it was raining hard intermittently. Never mind that on this Sunday night the NBA All Star game was going to be on TV and most people would be at home watching it or gathering together with friends to watch it. Never mind that the police knew Zimmerman did not have a reasonable suspicion to believe that the victim was committing, had committed or was about to commit a crime, based on the information that Zimmerman provided to the dispatcher in the NEN call. And for God’s sake, never mind that the dispatcher warned Zimmerman not to follow the victim.

The decision not to arrest Zimmerman, despite the information available to the police that night, appears to have been race-based. That is, the police would have arrested a Caucasian suspect unknown to them, if the victim had been Caucasian. Without any evidence, they appear to have decided that, despite the absence of a reasonable suspicion to believe the victim was “up to no good,” as Zimmerman described it, and despite his decision to ignore the dispatcher’s warning not to follow the unarmed victim — who had run away from Zimmerman — the victim suddenly decided for no apparent reason to attack Zimmerman and attempt to kill him with his bare hands.

Who in their right mind would do such a preposterous thing? They decided that a Black gangsta would do such a preposterous thing. Yet, when they found out the next morning that the victim was not a Black gangsta, but a middle class junior in high school with good grades, loving parents and no criminal record staying in a residence in the neighborhood, they refused to change their minds.

Could that decision have anything to do with efforts by George Zimmerman’s father, a former judicial magistrate in Virginia with connections to Seminole County State’s Attorney Norm Wolfinger, the State’s Attorney in Seminole County and Mark Osterman, Zimmerman’s best friend and former Seminole County Sheriff’s Deputy and close friend of Sanford Police Chief Bill Lee who was Serino’s boss?

There is a strong smell of corruption associated with the investigation of this case and the decisions not to arrest and not to charge Zimmerman with a crime. Norm Wolfinger retired, Chief Bill Lee was Fired, and Governor Scott appointed State’s Attorney Angela Corey to take over the case in response to national protests against the decision not to charge Zimmerman. The Florida Department of Law Enforcement took over the investigation from the Sanford Police Department and in short order Corey charged Zimmerman by information with second degree murder.

Serino, meanwhile, saved his job by recommending at the last minute that Wolfinger charge Zimmerman with manslaughter.

That smell of corruption suggests a possible civil rights violation that the Civil Rights Division of the United States Department of Justice, the United States Attorneys Office for the Central District of Florida and the FBI should be investigating.

Chris Serino has a lot to worry about these days and so do former Chief Bill Lee, former State’s Attorney Norm Wolfinger and other members of the Sanford Police Department who supervised Serino and decided not to charge Zimmerman.

Meanwhile, Mark O’Mara has announced his intention to depose the people in the department who decided against charging Zimmerman because he wants to publicize their reasons to influence potential jurors in Seminole County and he wants to call them as witnesses at Zimmerman’s trial.

Never mind that their opinions are irrelevant and inadmissible at trial and probably based on racist assumptions and improper influence.

Yes, indeed. Serino is caught between a rock and a hard place and he definitely made the right decision to retain counsel. Therefore, do not be surprised, if he declines to answer questions at the deposition on the ground that his answers might tend to incriminate him.

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