Zimmerman: I Love the Smell of Napalm in the Morning

July 16, 2012

The you-know-what hit the proverbial fan today in the George Zimmerman case.

The prosecution released W9’s damning account of being raped and molested by George Zimmerman over a 10 year period that began when she was 6 years old. W9 is his cousin. She is two years younger than him. The rapes she endured involved digital penetration of her vagina and the molestations involved fondling.

She submitted out of fear. She feared him physically and she feared her family would not believe her because he was so good at charming everyone. She finally mustered up the courage to terminate the abuse by running away from him and leaving the house. She told her parents, who told his parents, but nothing happened except he stopped attending joint family get-togethers. Her parents discouraged her from reporting the crimes to the police and she did not do so until he was in custody after he shot and killed Trayvon Martin. When asked by police investigators why she waited until then to report the crimes, she said she finally felt safe to do so.

I listened to her account and I thought it was very credible. Don’t kid yourselves, child victims of sex abuse rarely report the abuse because they are afraid they will not be believed and afraid of reprisals. This lady has a lot of guts and courage to come forward with these allegations knowing as she must have known that the information might become public.

Question: What impact will this have on selecting a jury in the murder case?

Answer: It will definitely complicate seating a fair and impartial jury, but the State of Florida was able to do that in the Casey Anthony case and I have no doubt they will be able to do so in the Zimmerman case.

We are immersed in this case, but many people are barely following it, if at all. The court will deal with the pretrial publicity issue by moving the trial to another county or importing a jury from another county, which is what happened in the Casey Anthony case. By questioning prospective jurors individually (i.e., out of the presence of other prospective jurors), the judge and the lawyers will be able to find out how much each juror knows about the case and whether a juror has formed an opinion about GZ’s guilt or innocence.

This precaution has worked in the past and it will work again.

Question: Is the evidence admissible at trial?

Answer: Not unless the defense opens the door by introducing evidence that GZ is a person of good character. If the defense opens the door, you will be able to hear a garbage truck backing up to the courtroom door with a load of bad character evidence to be provided in damning detail by W9 and anyone else they can find between now and the trial. According to W9, btw, there is another victim, but she is reluctant to come forward. Who knows, she might change her mind. For example, think of the recently concluded Sandusky case.

The rule in question is Rule 404(b) which prohibits the admissibility of uncharged misconduct unless it is probative of the defendant’s intent, knowledge, motive or opportunity, common scheme or plan, consciousness of guilt or absence of mistake or accident.

The evidence is inadmissible since it does not fall into any of these exceptions, unless the defense opens the door by introducing evidence of good character.

Like I said, Katie bar the door, if that happens.

While we are on the subject of uncharged misconduct evidence, let us not forget Shellie Zimmerman’s perjury and GZ’s role in putting her up to it and assisting her to conceal the Peter Pan account and lie about it in court (i.e., the internet donation account).

As Judge Lester said in his recent order setting bail, it would not have been unreasonable for the Court to have concluded that, but for the GPS bracelet, the defendant would have used his second passport to flee the country with $130,000 of other people’s money after he bailed out the first time.

If that was his intent, evidence of his role would be admissible under rule 404(b) as consciousness of guilt, for the same reason that evidence of flight to avoid prosecution is admissible to show consciousness of guilt.

I have written about this possibility before and, as I stated then, the prosecution probably will need Shellie Zimmerman’s cooperation and testimony against GZ to make that case.

Will W9’s statement be the straw that breaks Shellie Zimmerman’s back and sends her knock knock knockin’ on the door to the prosecutor’s office?

Who knows, she might even throw in an admission that GZ did not kill TM in self-defense.

Stay tuned.

Question:What about W9’s statements about racism in the Zimmerman family. Are they admissible?

Answer: No. W9’s testimony about family racism is not admissible because it’s not specific to GZ. She did not mention any specific instances where he expressed racist beliefs or epithets. and even if he had done so, it still would likely be inadmissible. Otherwise, it might be admissible under rule 404(b) to show evidence of motive.

Question: Are there any other foreseeable consequences?

Answer: Yes. The most immediate and probable consequence of this revelation today, other than a dramatic world-wide increase in disgust for George Zimmerman, should be a dramatic collapse of financial support via internet contributions to his defense fund.

Should be interesting to see what his supporters come up with to defend him. Are they vile enough to mount a full-fledged attack against W9 the way Rush Limbaugh attacked Sandra Fluke?

Will Fox News reach a new low in entertainment reportage?

Question: What’s up with his lawyers?

Answer: The not-ready-for-prime-time defense team still isn’t ready. They should have filed an appeal on Friday or first thing this morning in the Court of Appeals along with a request for an emergency stay ordering the prosecution to not release the information pending the outcome of the appeal.

This inexplicable failure coming on the heels of the reckless and legally groundless motion to disqualify Judge Lester looks really bad.

Apparently, O’Mara has asked for reciprocal discovery on W9 and that is not a good move at this time because it looks so thuggish.

Why posture like that when she is unlikely to testify?

Question: Did Judge Lester really have to release W9’s statement to the media under the Sunshine Law?

Answer: I do not know, but if so, this is a perfect case to get before the State Supreme Court to carve out a privacy exception to protect victims of uncharged crimes, especially sexual crimes, from having their stories published for all the world to see when it is not likely that they will ever testify.

I am appalled by their failure to file a timely appeal.


Is George Zimmerman About to be Charged with Perjury?

June 26, 2012

We have a bond hearing coming up on Friday, but I do not believe Zimmerman has a realistic chance to get bail. The recorded jailhouse telephone calls leave no doubt that he and his wife conspired to conceal the $155,000 that they had at their disposal when they were claiming indigency. She actually lied under oath in court and there is little doubt her husband put her up to it.

Then there is the troubling matter of the passport . . .

She cannot testify because she is charged with perjury and her lawyer will advise her not to testify because anything she might say can and most assuredly will be used against her.

He is in the same position, even though he is not charged with perjury, yet.

That’s right, folks.

Just because he has not been charged with perjury, does not mean that he won’t be charged.

So let’s take a look at the subject of accomplice liability for criminal behavior.

Section 2.06(3) of the Model Penal Code defines an accomplice:

A person is an accomplice of another person in the commission of a crime if:

(a) with the purpose of promoting or facilitating the commission of the offense, he

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it; or

(iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or

(b) his conduct is expressly declared by law to establish his complicity.

By now, I think most of us have listened to the recorded jailhouse conversations between GZ and SZ. Although I do not recall a conversation in which GZ and SZ specifically discussed a strategy to use in court to conceal the $155,000 he had received in donations to his PayPal account, there is no question that, pursuant to his instructions, she moved all of that money around in amounts less than $10,000 each time between three accounts (theirs and his sister’s) during the four-day period before the bond hearing.

When she was questioned at the bond hearing regarding whether she could estimate how much money was in the PayPal account, she responded that she had no idea. That response is the basis for the perjury charge.

The issue is whether GZ acted as her accomplice. If he did, he also committed perjury and is just as responsible as his wife under the law, even though he is not the one who lied in court.

To successfully prosecute GZ for perjury, the prosecution must be able to prove beyond a reasonable doubt that, for the purpose of concealing the $155,000 asset from the court in order to be found indigent at the bond hearing, he solicited or aided SZ to deny the existence of that asset while testifying as a witness under oath at the bond hearing.

The unusual machinations with the money by themselves demonstrate an effort to conceal the money, albeit an unsophisticated one. For example, bank to bank transfers do not meet the definition of currency. Therefore, there is no legal requirement imposed on a bank or credit union to report transactions exceeding $10,000 to the IRS. If SZ had transferred the entire $155,000 in one transaction, the credit union would not have generated a Currency Transaction Report to the IRS.

By structuring the transaction in amounts less than $10,000 however, the credit union would have generated a Suspicious Activity Report to the IRS, which likely will investigate what happened.

The final ironic twist is that the $155,000 is a non-taxable gift to GZ.

They went to all of that trouble to conceal the money and only succeeded in drawing unnecessary attention to themselves.

The question is, did they go to all that trouble to conceal the money from the IRS or did they do it to conceal the money from the court, or both?

Moving the money around coupled with the lie in court indicates both.

I think the prosecution needs SZ’s cooperation to prosecute GZ for perjury, so I believe it will be willing to play let’s make a deal with her to nail him by providing the evidence that proves the shared intent element of accomplice liability.

That brings me back to the two passports.

Were they planning a quick trip out of the country with the money, if the case started to go sideways? For example, were they planning to to wait and see how the SYG hearing went and if GZ lost, were they going split?

Then again, maybe they were just attempting to conceal the money from the lawyer, who was being an incredibly nice guy for taking the case on a pro bono basis because he liked GZ and believed they did not have any money.

Do you think SZ decided on her own to lie to the court?

Will she snitch to avoid a felony conviction and a likely prison sentence?

If she flips, do you think the deal might come together before the bond hearing?

I imagine the prosecution certainly would love to flip her before the hearing this Friday because it would guarantee that Judge Lester would deny GZ’s motion for bond and enormously complicate his already shaky defense against the murder charge.


Zimmerman Update: Six Recorded Jailhouse Phone Calls Released

June 19, 2012

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.

Go here to review the 69 page document.

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.

Q: Okay

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
_______________________
Total: $74,958

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?

SZ: No

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

V. Conclusion

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.


Prosecutorial Legerdemain

December 26, 2011

The Bill of Particulars is a document, prepared and sworn to under oath by the prosecution (ie, The Commonwealth) and filed with the court. The bill discloses the evidence the prosecution intends to introduce at trial.

In Crane Station’s case, the Bill of Particulars also contained a plea offer: if she would plead guilty to all three of the pending charges, the prosecution would recommend a prison sentence of eight years (four years on the possession and four years on the tampering to be served consecutively or end to end, plus seven days for the no-drug/no-alcohol/no bad driving DUI).

We did not see this document until just before the trial, probably because Crane Station had made it clear to her attorney at the time, Will Kautz, that she would not plead guilty, regardless of any plea offer — even if it were an offer for a Caribbean vacation — so he did not show it to her, even though he had a duty to do so.

The bill contained a materially false misrepresentation, namely, that the prosecution had “no exculpatory evidence” under Brady vs Maryland (a United States Supreme Court case that requires the prosecution to disclose all exculpatory evidence to the defense), when, in fact, it had two exculpatory vitally important lab reports in its possession: (1) a Kentucky State Crime Lab report by Examiner Neil Vowels finding no alcohol in her blood sample and (2) a Kentucky State Crime Lab report by Laboratory Technician Ryan Johnson finding no drugs in her blood sample. The prosecutor who drafted and signed the bill on October 16, 2006, declaring under penalty of perjury that its contents were true is Christopher Hollowell, who is now a McCracken County District Court judge.

The first lab result, the one that the prosecution hid from the grand jury and Deputy Eddie McGuire lied about when he testified before the grand jury on July 28, 2006, was completed 14 days earlier and faxed to the prosecutor’s office on July 24, 2006, which was 4 days before the grand jury met. Note the fax stamp on the top of the page stating that the report was faxed on 7/24/2006 at 12:32 PM to FAX number 2708247029. This is the phone number of the prosecutor’s office

The exculpatory drug test result was dated and signed by Ryan Johnson September 25, 2006, which is almost a month before now Judge Hollowell signed the Bill of Particulars declaring under penalty of perjury that the prosecution did not have any exculpatory evidence. The bill was filed in the Clerk’s Office the next day on October 17, 2006.

Fortunately, Crane Station’s lawyer, Will Kautz, who knew that her blood sample had been sent to the crime lab for drug and alcohol analysis, kept demanding the lab results. The alcohol result was finally disclosed when we viewed the evidence in the evidence unit at the McCracken County Sheriff’s Department in late October or early November, but the drug result was withheld until the beginning of the suppression hearing on November 26, 2006.

We believe the prosecution deliberately withheld the exculpatory lab results from Crane Station and concealed the exculpatory alcohol report from the grand jury in an effort to mislead the grand jury in order to obtain an indictment and cause her to give up hope and plead guilty unaware of the results. We suspect but cannot prove that the prosecutor’s office routinely withholds exculpatory evidence hoping that depressed and dispirited defendants will give up and plead guilty. This shows what little regard the prosecution has for the accused, due process of law, the rule of law, the members of the grand jury whom they are misleading, and the important role of the grand jury to determine whether probable cause supports each charge in an indictment.

Consider that there is, in effect, no speedy trial rule in Kentucky and defendants who insist on a jury trial in McCracken County have to wait approximately 18 months before they go to trial. Bail bondsmen are prohibited in Kentucky. If defendants are unable to post bail, they have no choice but to rot in jail until trial. Pretrial detainees are not segregated from inmates serving sentences for misdemeanors and felonies. All are mixed together in general population in the McCracken County Jail. Frog Gravy gives you an honest unvarnished look at what that is like.

Given how prosecutors and police probably routinely ignore people’s constitutional rights, how can there be any surprise that innocent people plead guilty in McCracken County? Crane Station was fortunate to make bail, but I fear she is the exception rather than the rule.

Here are the photos:

Bill of Particulars

Bill of Particulars filed October 17, 2008 by Crane-Station on flickr.

False statement on sworn Bill of Particulars

The statement: “The Commonwealth has reviewed the material in this case and finds no material which is exculpatory under Brady vs Maryland.”

Sworn under oath

Sworn under oath and delivered.

Exculpatory evidence hidden

The hidden exculpatory lab result for alcohol (exculpatory under Brady)

Exculpatory evidence hidden

enlarged.

Exculpatory evidence hidden.

The hidden exculpatory blood test result for drugs.

Exculpatory drug test result

The hidden exculpatory drug test result (under Brady), enlarged.

These lab results have been published online in other posts as well.

Amazing coincidence that Crane-Station received an eight-year sentence after the jury trial.


The Art of Cross Examination (Part 5) The Killer Cross That Never Happened

December 24, 2011

Author’s Note: This is a continuation of the Killer Cross that never happened because Crane Station’s lawyer, Chris McNeill, refused to use it. If you have missed the first two parts of the cross, which are in Part 3 and Part 4 of this series, follow the links. I recommend reading them before reading this post, for the sake of continuity.

All rise. Court is again in session.

Good morning, ladies and gentlemen. You may be seated.

Deputy McGuire, you may return to the witness stand. I remind you that you are still under oath.

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

40. Q: On the way to the hospital, you never detected any movement in the back seat that caused you to believe that Mrs. Leatherman was attempting to hide anything, did you?

A: No.

Transcript Suppression, page 24, lines 15-18

41. Q: But you testified under oath to the grand jury that on the way to Lourdes Hospital “Of course, she’s cuffed behind her back, and she is trying to work it — work it down into the seat, and she dropped her watch with it,” didn’t you?

A: Yes.

Transcript Grand Jury, pages 4-5, lines 23-1

42. Q: You didn’t see anything that would suggest she did that, did you?

A: No.

43. You told another lie, didn’t you?

A: Yes.

44. Q: You also testified to the grand jury that the Kentucky State Crime Laboratory result of the alcohol content in Mrs. Leatherman’s blood wasn’t back yet, didn’t you?

A: Yes.

Transcript Grand Jury, page 5, lines 17-18.

45. Q: Please take a look at Defendant’s Exhibit A. It has been identified as a copy of the laboratory analysis of the alcohol content in Mrs. Leatherman’s blood by Examiner Neil K. Vowels. Do you recognize it?

A: Yes.

46. Q: He did not detect any alcohol in her blood, did he?

A: No, he didn’t.

47. Q: Please take a look at the bottom left corner of the exhibit. There is a notation that reads, “Date Completed.” What date appears next to these words?

A: 7/14/2006.

48. Q: You testified before the grand jury on July 28, 2006, didn’t you?

A: Yes.

49. Q: So, you testified 14 days after Examiner Vowels completed his report, correct?

A: Yes.

50. Q: Now take a look at the top line. It indicates that the report was faxed to the prosecutor’s office at 12:32 PM on July 24, 2006, doesn’t it?

A: Yes.

51. Q: That was 4 days before you testified before the grand jury, correct?

A: Yes.

52. Q: Now at the grand jury when the Commonwealth’s Attorney said, “We don’t have the blood results back?” and you answered, “I don’t believe so, blood or lab, yeah,” can you explain why you and the Commonwealth Attorney did not know the result of the alcohol analysis of Mrs. Leatherman’s blood sample — a test completed two weeks before and faxed to the Commonwealth’s Attorney four days before you testified before the grand jury?

A: No.

53. Q: You have testified that Mrs. Leatherman failed all six clues on the HGN test. You did not document the basis for your conclusion in your narrative report, did you?

A: No.

54. Q: We only have your word for that, don’t we? Just as only have your word that she told you that she was on all of her prescription medication?

A: Yes.

55. Q: For the sake of argument, let’s assume you did tell the truth when you testified that she failed all six clues. As a police officer certified to give the HGN test, you must know that NHTSA, the National Highway Traffic and Safety Administration, recommends that the test be administered to a suspect facing away from the police cruiser because the strobing lights will cause a false nystagmus, don’t you?

A: Yes.

Link.

Q: Yet, you positioned her facing your strobing police cruiser when you administered the HGN, didn’t you?

A: Yes.

in-dash video

56. Q: Metoprolol is one of the prescription drugs that Mrs. Leatherman had in her car when you pulled her over, correct?

A: Yes.

57. Q: Metoprolol is a drug used to control hypertension, or high blood pressure, correct?

A: Yes.

58. Q: As a police officer certified to administer the HGN test, you know that hypertension can cause nystagmus, don’t you?

A: Yes.

59. Q: You, Deputy Walters, and Officer Dawes thoroughly searched Mrs. Leatherman’s vehicle, including the trunk, her purse, and her personal belongings, correct?

A: Yes.

60. Q: Other than the three prescription drugs, you didn’t find any drugs, drug residue, or paraphernalia, did you?

A: No.

61. And Officer Dawes thoroughly searched Mrs. Leatherman by the side of the road before you placed her in the back seat of your police cruiser, didn’t she?

A: Yes.

62. Q: The search included a visual examination of her genital area, correct?

A: Yes.

63. Q: She also reached into Mrs. Leatherman’s back pockets, correct?

A: Yes.

64. Q: And before the search, you ordered Mrs. Leatherman to empty her front pockets by turning them inside out, didn’t you?

A: Yes.

65. Q: And Officer Dawes checked Mrs. Leatherman’s breasts to see if she might have hidden something in her bra, didn’t she?

A: Yes.

66. Q: She also checked around Mrs. Leatherman’s waist to see if she might have hidden something there, correct? And shoes?

A: Yes.

67. Q: No drugs, drug residue, or paraphernalia were found, right?

A: Correct.

The answers to questions 59-67 can be verified by the in-dash video.

68. Q: You didn’t arrest her for DUI Alcohol, did you?

A: No, I did not arrest her for DUI alcohol.

69. Q: You didn’t arrest her for possession of a controlled substance at that point either, correct?

A: Yes.

70. Q: You arrested her for DUI Drugs, didn’t you?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 4-6.

71. Q: You didn’t advise Mrs. Leatherman that she was under arrest, did you?

A: No, I didn’t.

72. Q: You told her that you were taking her to Lourdes Hospital for a blood test, didn’t you?

A: Yes.

73. Q: A blood test that she offered to take, correct?

A: Yes.

74. Q: You didn’t tell her you were taking her to jail, did you?

A: Correct, I didn’t tell her I was taking her to jail.

Author’s Note: Questions 71-74 set up a point to be made during final argument; namely, that Crane-Station had no reason to attempt to slough a rock of crack behind his seat during the ride to the hospital. Assuming for the sake of argument that she had somehow hidden it so well that Officer Dawes could not find it and, given that we know that Crane-Station knew her blood test would come back negative for alcohol and drugs, we can reasonably conclude that she would have had no reason to think she would be searched again. Therefore, why risk attracting attention attempting to slough drug?

This illustrates another important point about cross examining effectively. Use it to set-up your final arguments during summation.

Judge: Excuse me Counsel. Let’s break for the day. Court will be in recess.

To be continued . . .


The Art of Cross Examination (Part 4) The Killer Cross That Never Happened

December 23, 2011

Author’s Note: This is a continuation of the Killer Cross. If you have not read the first part, please go here to read it, as it is important for the sake of continuity.

Notice that each question is a leading question. That is, the questioner, in this case the defense attorney, makes a statement and asks the witness, Deputy Eddie McGuire of the McCracken County Sheriff’s Department, to agree or disagree with it. With the exception of a few questions to which the answer is common knowledge or otherwise apparent, the statement in each question is a prior statement that the witness made in his report or a prior statement that he made under oath while testifying at the preliminary hearing, grand jury, or suppression hearing.

After the question that contains the witness’s prior statement, I provide an answer that confirms the prior statement that he made. Below the answer in italics, I provide the source for the statement.

For example, in the first question below (#25 in the sequence that started yesterday), Deputy McGuire testified at the preliminary hearing that he pulled Crane Station over because he thought she possibly had some heroin. If he had answered the question below with a “No,” the lawyer would have impeached him with his prior inconsistent statement under oath by following the formula that I presented in Part 2 of this series. Please review that procedure, if you have not read it or are uncertain about it.

As I have said previously, impeachment by prior inconsistent statement is one of the most powerful and effective tools to cross examine and destroy the credibility of a witness and your opponent’s case.

Unfortunately, Crane Station’s lawyer, Chris McNeill, refused to use this cross examination and he lost the case. However, in the strange manner that the universe works, his refusal ended up giving me this opportunity to educate all of you about something only a few of you know anything about, which is the art of cross examination.

In a subsequent post, I will discuss why I think he declined to use it.

I love teaching! and I hope you enjoy reading the Killer Cross that never happened.

All rise. Court is back in session. You may be seated.

25. Deputy McGuire, you pulled Mrs. Leatherman over because you thought she possibly had some heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 14-15

26. Q: You have testified that you thought she possibly had some heroin on her because Mr. Wilkey called 911 and reported that she asked him if he knew where she could purchase some tar heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 7 lines 1-3

27. Q: That’s what you told the members of the grand jury on July 28, 2006, isn’t it?

A: Yes.

Transcript Grand Jury, page 1, lines 17-23

28. Q: The grand jury is a group of citizens who decide whether to indict a suspect whom a law enforcement officer, such as yourself, has arrested for a felony crime, right?

A: Yes.

29. Q: The grand jury decides whether there is probable cause, or reasonable grounds to believe that a suspect has committed a felony crime, correct?

A: Yes.

30. Q: You would agree with me that it is extremely important for a witness testifying before the grand jury to tell the truth, isn’t it?

A: Yes

31. Q: You promised to tell the truth, the whole truth, and nothing but the truth when you testified, didn’t you?

A: Yes.

32. And that is the same promise that you made to this court and this jury today, isn’t it?

A: Yes.

33. Q: Mr. Wilkey told the 911 operator that Mrs. Leatherman had a conversation with his neighbor in the neighbor’s yard in which she “mentioned something about tar heroin and all that stuff,” isn’t that correct?

A: Yes.

Transcript 911 Call, page 2, lines 8-9

34. Mr. Wilkey did not tell the 911 Operator that Mrs. Leatherman asked him if he knew where she could purchase some heroin, did he?

A: No he didn’t.

35. Q: And the 911 Dispatcher did not tell you that Mr. Wilkey had reported that Mrs. Leatherman had asked him if he knew where she could purchase some heroin, did he?

A: No, he didn’t.

Transcript of Dispatcher Tape, page 1. This transcript was first made available by the prosecution during the trial. I did not have it or include a reference to it in my proposed cross. Nevertheless, I included this question because I believed the dispatcher never would have said what the deputy claimed he said in view of what the 911 caller had said. I also knew we could request and obtain a copy of the dispatcher tape and transcribe it before the deputy testified. Both the 911 call and the 911 dispatch could have been played to complete the impeachment.

36. Q: Despite promising to tell the truth to the grand jury, you did not tell the truth when you told the grand jury that Mr. Wilkey called 911 and reported that she asked him where she could buy heroin, correct?

A: Yes.

37. Q: You also told the grand jury under oath that Mrs. Leatherman was “very unsteady on her feet,” when she got out of her vehicle after you stopped her, didn’t you?

A: Yes.

Transcript Grand Jury, page 3, lines 6-7

38. Q: That was a lie too, wasn’t it?

A: Yes.

39. Q: Lying under oath to a grand jury is a felony called perjury that is punishable by up to 5 years in prison, isn’t it?

A: Yes.

Author’s Note: If the deputy said he did not know that what he did was perjury, the lawyer could simply hand him the statute and have him read it out loud. I did not put this in the document that I prepared for Chris McNeill because any lawyer should know this.

This is called playing hardball. I designed this part of the cross to provoke the judge into interrupting and advising the deputy of his Fifth Amendment right to remain silent and refuse to answer on the ground that his answer might have incriminated him. An honest judge also would have offered to recess the trial long enough for the deputy to consult with a lawyer and decide whether to continue answering questions.

At this point, an honorable prosecutor would have, in effect, tossed a white handkerchief over counsel table into the middle of the courtroom as a symbolic gesture of surrender.

None of this happened, however, because Chris McNeill refused to do the cross because, as he put it, “the deputy was a nice young man and the jury would have been offended,” if he used my proposed cross examination.

But, let us continue. Now that we have established that the deputy is a perjurer, let’s take him all the way down. Until tomorrow, Court will be in recess.

To be continued . . .

Cross posted from my law blog.


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