Since his lawyer admitted Tsarnaev’s guilt, why didn’t he plead guilty?

March 5, 2015

Since his lawyer, Judy Clarke, admitted Dzhokhar Tsarnaev’s guilt during her opening statement yesterday in the Boston Marathon bombing trial, why didn’t he plead guilty?

Many people have been asking this question in comments to news stories and blogs. The answer is the defense offered to plead guilty, if the prosecution would agree to drop the death penalty. The prosecution refused, so the defense decided to use the guilt/innocence phase of the trial to introduce evidence that they believe mitigates or reduces his culpability for the bombings relative to his older brother Tamerlan, whom the defense claims was the principal instigator or moving force who came up with idea and put it into effect.

Mitigation is not a defense to the crimes charged. Mitigation is any evidence about the defendant and the crime he committed, including the exercise of mercy, that calls for a sentence of less than death. As a matter of law, for example, a person who conspires with another to commit a crime, is just as guilty as the person who actually commits the crime, even if he is not present when the crime is committed. Even if he is present, that does not mean that he deserves or will receive the same sentence.

There is no crime, no matter how offensive, heinous or depraved that automatically merits the death penalty. Instead, jurors have to weigh the evidence admitted in aggravation (i.e., evidence about the crime and the defendant’s prior criminal record of convictions) against the evidence admitted in mitigation and decide whether the evidence in aggravation so outweighs the evidence in mitigation that a sentence of death is merited.

Evidence about the crime committed can also qualify as evidence in mitigation. For example, in a multiple defendant case such as the Boston Marathon bombing case, a defendant’s minor or minimal role in comparison to a defendant who plays a major or supervisory role is definitely a mitigating factor. The defense wants to use the guilt/innocence phase of the trial to establish that Tamerlan Tsarnaev was the instigator, the committed jihadi who was the planner and the energetic force behind the scheme to detonate two IDEs near the finish line of the Boston Marathon. They want to elicit evidence from prosecution witnesses, including law enforcement and his former friends testifying under oath that Dzhokhar Tsarnaev was a young, immature and rather typical American college kid who never would have involved himself in the crazy scheme but for his older brother who seduced him with tales of revolution, retribution and immortality in the service of God.

I have referred to this strategy as a ‘slow motion guilty plea.’ Dzhokhar has a Sixth Amendment right to go to trial, even if he is guilty. Guilty or innocent, every defendant in a criminal case has the right to force the government to prove its case beyond a reasonable doubt. What Judy Clarke said in opening statement is not evidence. The government still has the burden of proof. She believes that eliciting mitigating evidence by cross examination during the trial from witnesses testifying under oath will have greater impact than presenting the evidence in a penalty phase after the jury has decided the case. I agree because I have done this myself. In other words, timing matters.

I would never advise a client to plead guilty to a death penalty offense, unless the prosecution agreed to drop the death penalty. I believe it would be malpractice to do that.

Judy Clarke plans to use the trial to save his life.


Mark O’Mara engineers snipe hunt to avoid responsibility for publicizing irrelevant evidence

May 29, 2013

Wednesday, May 29, 2013

Good afternoon:

NBC News reported late yesterday:

A Florida judge ruled Tuesday that George Zimmerman’s defense team cannot mention Trayvon Martin’s suspension from school, prior marijuana use, text messages or past fighting during opening statements at next month’s trial.

Judge Debra Nelson said that during the trial she will consider motions to admit details as evidence on a case-by-case basis, outside the presence of jurors who will decide if Zimmerman is guilty of second-degree murder in the shooting death of Martin.

Although this statement is technically correct, it also is misleading because Judge Nelson actually concluded that the evidence was irrelevant and inadmissible. That is why she granted the State’s motion in limine to prohibit the defense from mentioning any of those things during jury selection and opening statement.

The only reason she might change her mind is if the State were to open the door by introducing evidence of good character. That is not going to happen because Trayvon’s character, whether good or bad, is not an issue in this case. BDLR has no reason to introduce evidence of good character and I am certain that he was not planning on doing that because he knows that good character evidence is irrelevant. Since the defense cannot rebut something that does not happen, the jury will not hear any of this information.

That is not the end of the story, however, because the irrelevant information in question was obtained from Trayvon Martin’s phone and it is the subject of a defense motion for sanctions and request for a judicial inquiry that Judge Nelson has scheduled for June 6th, the same day as the Frye hearing regarding the admissibility of expert testimony identifying the person who uttered the terrified death shriek.

I do not believe Judge Nelson is going to find that BDLR withheld evidence from the defense. The evidence was recorded on Trayvon’s phone in binary code and a copy of that raw data was disclosed to the defense sometime in late January. O’Mara did not hire an expert or purchase a software program that can translate that code into plain English.

A few weeks ago, O’Mara was contacted by an attorney who represents Ben Kruibdos, the Director of Information Technology for the Fourth Judicial Circuit. The attorney is Wesley White.

The Miami Herald reports:

White led the Nassau County state attorney’s office before resigning in December, citing differences of opinion with Corey. He is now in private practice.

White said the photos Kruidbos retrieved were of a hand holding a gun and one depicted drugs. The content of the text messages wasn’t specified.

“I’m an officer of the court and I’m obliged to inform the court of any misconduct or any potential misconduct coming before the court. Whether it’s by the defense or prosecution,” White said.

Apparently, Kruibdos extracted the two photographs and possibly the text messages from the binary code and gave them to BDLR who did not pass them on to O’Mara.

Does that constitute a discovery violation or a tempest in a teapot?

I believe it is a tempest in a teapot, so long as BDLR turned over the raw data.

Judge Nelson has already ruled that the evidence is not relevant or admissible and it certainly is not exculpatory.

We will have to wait and see how the hearing turns out, but this looks like another snipe hunt instigated by O’Mara to distract everyone from holding him accountable for publicly disclosing information that should not have been disclosed.

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Defense mendacity in Zimmerman case is disgusting

May 24, 2013

Friday, May 24, 2013

Good morning:

George Zimmerman’s attorneys, Mark O’Mara and Don West, have unintentionally confirmed this week that they have no defense to present on his behalf by knowingly and intentionally publishing false, irrelevant and inadmissible information about Trayvon Martin to incite white racists to denounce him as a pot smoking black thug who deserved to die.

I used the word “confirmed” because three weeks ago the defendant appeared in open court and waived his right to an immunity hearing. The mixture of false and misleading information released yesterday is not a defense to second degree murder. It’s deliberate character assassination by false statement and innuendo of an unarmed teenager who was stalked, restrained and shot through the heart while screaming for help.

Here’s LLMPapa:

Last I heard, skipping school, pot smoking and participating in refereed fights between equal combatants is not a death penalty offense.

In other news, the defense attorneys filed a flurry of forgettable motions and responses to prosecution motions which, like snowflakes in April, are destined to melt when they hit the ground.

I begin with Donald West’s frivolous, dishonest and intentionally misleading reefer-madness motion that he filed earlier this week arguing that a trace amount of marijuana in Trayvon Martin’s autopsy blood should be admissible to prove that he was the aggressor even though he was unarmed and the defendant stalked, restrained and shot him in the heart.

The defense motion to continue:

1. cites no authority,

2. claims he needs to investigate Dr. Reich (the State’s audio expert who identified Trayvon as the person screaming for help), which takes about an hour if you google him,

3. claims other unnamed experts told him Dr. Reich’s opinion is based on science that has fallen into “disrepute,”

4. fails to support this assertion with an affidavit from one or more of these experts, and

5. claims he needs time to find an expert to hire even though he is supposedly in touch with all of these experts.

This motion is ridiculous and will be denied because it fails to document a reason for a continuance.

O’Mara’s motion for sanctions against Bernie de la Rionda for not disclosing the evidence that the defense obtained from Trayvon’s phone and published in its 3rd evidence dump, is frivolous because the so-called exculpatory evidence that he claims BDLR withheld in violation of the Brady rule is not exculpatory.

Therefore, the Brady rule does not apply and this motion should be denied.

West’s reply to the State’s motion to exclude opinion evidence about the defendant’s guilt or innocence generally admits that witness opinions about the guilt or innocence of a defendant are inadmissible but warns that if the State attempts to attribute the delay in arresting and charging the defendant (which isn’t relevant either), then the State will have opened the door to allowing the defense to call SPD cops to justify what they did.

I don’t believe this issue will come up as it is irrelevant to whether the defendant murdered Trayvon.

Sideline mini-trials about marginally relevant or irrelevant issues are exactly what evidence rule 403 is designed to prevent.

West’s 2-page reply to the State’s motion to exclude the defendant’s self-serving hearsay statements, which does not cite a case, generally agrees that many of the defendant’s statements are hearsay, if offered by the defense, but disagrees with the State’s argument that none of the defendant’s statements are admissible under the res gestae exception or some other exception to the hearsay rule. West asks Judge Nelson to reserve ruling until the issue comes up in trial.

This is a sneaky response because West wants to be able to ask a leading question seeking agreement from a witness that the defendant said XYZ. For example, he might ask SPD Investigator Serino this question:

George told you that he killed Trayvon in self-defense, didn’t he?

Bernie de la Rionda (BDLR) would object to the question because it contains an inadmissible self-serving hearsay statement.

Judge Nelson would sustain the objection, but she cannot unring the bell, so to speak. The jury would have heard the defendant’s inadmissible statement.

He also would probably like to mention that self-serving hearsay statement during the defense opening statement to the jury or maybe during jury selection.

The purpose of the State’s motion in limine regarding the defendant’s self-serving hearsay statements is to prevent those events from happening, and I am reasonably certain Judge Nelson has seen this trick before and is savvy enough to see through West’s tactical deception.

Therefore, I expect she will grant the State’s motion.

BTW, the res gestae exception that West mentions is a limited exception to the hearsay rule similar to the present-sense-impression exception in which the hearsay statement about an event occurs as the event happens. Thus, the statement is part of the event itself or the res gestae and cannot be excised from it.

The State’s motion in limine seeking an order prohibiting the defense from mentioning the voice stress analysis test that the defendant took should be granted because that’s the legal rule in Florida and elsewhere. The rule is based on the lack of general agreement among scientists that this type of test can consistently produce accurate and reliable results.

In other words, the test violates the Frye Rule.

Judge Nelson should grant this motion.

The State’s 3rd motion for a gag order asks Judge Nelson to put an end to the defense effort to poison the jury pool by assassinating Trayvon Martin’s good character with false evidence and innuendo publicized after the jury pool of 500 people have received their notices to report for jury service on June 10, 2013.

It is no accident that the defense waited until after the 500 potential jurors were served with their notices, but before they report for jury service. Therefore, this was a deliberate tactic to create an unringing the bell problem regarding false, irrelevant, and inadmissible evidence.

A gag order will not unring the bell.

This is quite possibly the sleaziest tactic that I have ever seen. To intentionally poison a jury pool a couple of weeks before trial with false and misleading information about the victim of a homicide calculated to incite and unite White racists to approve of the execution of an unarmed Black teenager is astonishing.

These two lawyers are fortunate that I am not Judge Nelson because I would jail them for contempt of court and file complaints against the bar association requesting their disbarment from the practice of law.

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Zimmerman: Let there be thunder that makes the mountains tremble

May 4, 2013

Saturday, May 4, 2013

Good afternoon:

The defendant’s friend, Frank Taaffe, described the defendant’s state of mind the night that he stalked and killed Trayvon Martin.

He was mad as hell and he wasn’t going to take it anymore.

Given that Taaffe uttered this statement after he found out about the shooting, I believe we can reasonably assume that he believed the defendant pursued and confronted Trayvon with murder in mind.

Why did he believe that?

Why was the defendant so angry?

What was it that the defendant was not going to take anymore?

I have puzzled over Taaffe’s statement ever since I heard him say it.

Despite a lack of objective evidence that would support a belief that the gated neighborhood was besieged by burglars and thieves, the defendant appears to have believed that was actually happening, or he pushed that false narrative in hopes of creating a justification for the Homeowner’s Association to hire him to provide security.

He also appears to have believed that the burglars and thieves were Black and they always got away.

Frank Taaffe told us that the defendant was mad as hell about that and he was going to put an end to it.

The defendant said during the NEN call, “fucking coons,” and “these assholes, they always get away.”

This explains why he got out of his vehicle and hunted for Trayvon, ignoring the dispatcher’s request not to follow him.

Indeed, we can see by his actions that he was “mad as hell.” Acting as police officer, prosecutor, jury, judge and executioner the defendant decided that Trayvon was one “fucking coon,” one “asshole” who wasn’t going to get away.

A little over two minutes after the defendant ended the NEN call, after telling the dispatcher to have the officer call his cell phone when he arrived in the neighborhood, he hunted Trayvon down and shot him to death as Trayvon was telling Dee Dee about the creepy man who stalked and frightened him.

Trayvon never found out who he was or why he stalked and attacked him.

He died in the dark and cold rain begging for his life and shrieking in terror and disbelief.

Although Trayvon was a good kid, it would not have mattered if he were the Devil incarnate.

He was unarmed and he did nothing except try to escape from a creepy man who stalked him, first in a vehicle and then on foot.

The defense effort to demonize him and his family disgusts and infuriates me.

Demonizing Trayvon, even if successful, is not a defense and evidence of bad acts or character, assuming such evidence exists, is not admissible.

Defense counsel deserve harsh criticism and universal condemnation for pursuing this incredibly depraved and unnecessary course of action.

By attempting to exploit racial stereotypes and race-driven fear of Black males in a high publicity case, Mark O’Mara, Don West and everyone who supports what they do give us all a bad name.

Let there be thunder across this land that makes the mountains tremble,

Justice for Trayvon

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

April 30, 2013

Tuesday, April 30, 2013

Good evening:

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

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

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

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

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

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

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

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

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Afro-Peruvian emperor wears no clothes

April 24, 2013

Wednesday, April 24, 2013

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

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

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

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

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

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

3. Post trial immunity hearings are a terrible idea

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

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

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

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

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

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

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

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Zimmerman defense team’s latest actions show fear and desperation

March 27, 2013

Wednesday, March 27, 2013

From the they-don’t-teach-you-this-in-law-school file, comes this bit of sage advice whispered to me late at night in a bar in some long forgotten city by a nationally respected criminal defense lawyer whose name I shall not disclose in this sacred house.

When all else fails and you know you have a loser case, abandon hope, jack-up the level of pain pissing off the judge and prosecutor, keep on swingin’ ’til you knock somebody down and keep on keepin’ on until they commit reversible error. You want to make them mad enough to spit nails so they go home at night and kick the fuckin’ dog

This is the desperate strategy that Mark O’Mara appears to be using with his latest flurry of specious motions that have no chance of being granted. He is personalizing the battle hoping to evoke anger sufficient to overwhelm reason and provoke an emotional retaliation that introduces reversible error into the record. He also has an eye on the rate of financial contributions to the internet fund. He needs to keep making news to loosen the purse strings of the dwindling number of racists still willing to contribute money to the defendant’s losing cause.

Why do I say losing?

Because he has, in effect, waived the immunity hearing without formally doing so on the record, and he is trying his case everywhere except a courtroom, which is the only place that it should be tried.

Hell, he is so desperate and scattered that he cannot even get it together to note up his specious motions for a hearing.

Take heart fellow Trayvon supporters because these are not the actions of a well prepared, confident and professional attorney.

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

March 8, 2013

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

In Dennis v. State, 51 So.3d 456, 462 (2010), the Florida Supreme Court stated,

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

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

March 6, 2013

Wednesday, March 6, 2013

Several of you, including Xena, Southern Girl and Towerflower, have asked me to comment on the possibility of combining an immunity hearing with the trial. I do not believe that is a workable solution because it would violate the defendant’s right to remain silent and the presumption of innocence.

Let us use the defendant’s case as an example.

In a typical immunity hearing, a defendant has the burden of proving by a preponderance of the evidence (more likely so than not so) that he acted in self-defense. He puts on his case first, since he has the burden of proof, and the prosecution goes second. If the judge concludes that he satisfied his burden, she will enter an order granting him immunity from civil suit and dismiss the criminal case.

A defendant is not required to testify at the immunity hearing, but if he testifies, and most will since they have the burden of proof, he does not waive his right to remain silent at a subsequent trial, if the judge denies his motion for immunity.

If the hearings are combined in GZ’s case, the prosecution will go first because it has the burden of proving beyond a reasonable doubt that he did not kill Trayvon Martin in self-defense.

Let us suppose for the sake of argument that the defense manages to poke some holes in the prosecution’s case such that the defendant and his lawyers are pretty confident about winning the trial without putting on a defense. They do not believe the defendant needs to testify and he does not want to testify.

The defense moves for a judgment of acquittal and for an order granting immunity.

For the purpose of the criminal case and ruling on the motion for a judgment of acquittal, the judge would be required to decide whether a rational trier of fact could find beyond a reasonable doubt that the defendant was guilty based on the evidence introduced during the prosecution’s case. Let us further suppose that the judge decides that a rational trier of fact could convict the defendant and denies the motion for a judgment of acquittal.

For the purpose of ruling on the immunity issue, the judge would be required to decide whether the defense had met its burden to prove by a preponderance of the evidence that he had acted in self-defense. There is little likelihood that the judge would grant the motion because the defense has not put on its case and the defendant has not testified. Therefore, the judge would deny the motion.

Now what happens?

If this were “just” a trial, the defense would rest without introducing any evidence or putting the defendant on the stand to testify. I won about 80% of my trials by employing this strategy, including some self-defense cases by relying on the presumption of innocence and arguing reasonable doubt.

The defense cannot use that strategy, however, if it wants a shot at immunity. Since it has the burden of proof, it must put on a case and the defendant has to testify.

Do you all see the problem now?

The defendant has to give up his right to remain silent to have a shot at immunity, but if he testifies, he risks not only losing the motion for immunity, he also risks being convicted by the jury, if the jury does not believe him.

In other words, in order to exercise his statutory right to an immunity hearing, he is forced to give up his right to remain silent and be presumed innocent in the criminal case.

Notice that combining an immunity hearing with the trial only hurts a defendant.

There is a very long line of SCOTUS cases that prohibit forcing a defendant to give up one constitutional right to exercise another.

That is the problem with combining a pretrial immunity hearing with a trial.

It is also the reason why pretrial suppression hearings in criminal cases are not combined with trials.

I realize that this procedure has been followed in other cases in Florida, and Judge Nelson could decide to follow it in GZ’s case, but I think she would be unwise to do so.

For example, if the defendant were to testify, the jury found him guilty, and Judge Nelson denied his motion for immunity, you can bet that he will claim that he was forced to waive the presumption of innocence and his right to remain silent in order to exercise his statutory right to an immunity hearing and that his lawyer provided ineffective assistance of counsel in violation of his Sixth Amendment right to counsel by waiving his right to a pretrial immunity hearing.

I believe that the case will be reversed and remanded for a new trial, if the scenario that I have described takes place.

The scenario is not far fetched.

Frankly, I am shocked that defense counsel would even consider combining the immunity hearing with the trial. Either they are incompetent or simply using this idea as a smokescreen to conceal that they know they have no case.

They may be unwilling to admit publicly that they do not really intend to pursue the request for an immunity hearing during the trial for the simple reason that they fear financial contributions to the defense would wither away to nothing.

I regard that as theft by misrepresentation.

GZ’s supporters should be screaming bloody murder about this latest turn of events.

Instead, his supporters, including some criminal defense lawyers who should know better, are calling yesterday’s decision a victory for the defense.

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Lawyer Games and Trayvon Martin’s “Missing” GPS Data for February 26, 2012

February 1, 2013

Friday, February 1, 2013

Good afternoon to all of you.

The topic today: Lawyer Games and Trayvon Martin’s “Missing” GPS Data for February 26, 2012.

I have played my fair share of lawyer games over the years and I must admit that the adrenaline rush from winning a round of Gotcha! can become quite intoxicating and addictive. We have what appears to be a splendid game afoot between Mark O’Mara and Bernie de la Rionda.

Allow me to briefly set the stage.

MOM kicked off to BDLR with a Motion to Continue (the trial date). He wrings his hands and whines incessantly for fifteen pages about how the prosecution has so inconvenienced the defense that it cannot possibly be ready to try this case on the scheduled trial date of June 10, 2013.

BDLR’s response paints a very different picture of the prosecution cooperating with the defense by waiving the subpoena requirement and producing its witnesses for deposition only to have MOM cancel entire days of scheduled depositions at the last minute.

Then he kicks him where the Sun don’t shine by asking rhetorically if the real reason MOM filed the defense motion was to get more time to replenish the internet fund.

I urge all of you to read MOM’s motion and BDLR’s response because they are instructive and entertaining.

I am going to focus on one small part of the motion. On page 8, MOM asserts that on January 8th, he was provided with “an enormous amount of additional information” obtained from Trayvon Martin’s cell phone by CelleBrite, a company in New Jersey that claims to be able to obtain logical and physical information from cell phones. The information Cellebrite obtained was in addition to information obtained by the FDLE and a California law enforcement agency.

So far so good. However, there may be a catch. MOM complains that, although he has been provided with GPS data for the month of February 2012, he was not provided with any GPS data for the date of February 26th, the date of the murder. Apparently, the GPS data that has been provided is more accurate than we knew.

Damn! What a teaser. Don’t you hate it when that happens?

If I were O’Mara, I would proceed very cautiously because it looks and feels like gossamer-thin ice, a trap set for the unwary in the Gotcha! game.

I noticed that BDLR did not respond to MOM’s claim that the GPS data for the only date that matters in this case is missing.

I commented earlier:

“We have no choice except to wait until the Tuesday court hearing, because neither BDLR nor the FDLE have responded in writing regarding O’Mara’s claim about the “missing” GPS phone data for 2/26.

My best guess now, given MOM’s characterization of the data that was retrieved by CelleBrite, the New Jersey company that specializes in retrieving information from cell phones, as “an enormous amount of additional information” (i.e., additional to the information obtained by FDLE and a California LE agency), is that that information annihilates the defendant’s narrative of what happened.

In other words, Game, Set, Match!

Assuming I am right, that would be a rather brilliant strategic move by BDLR to put MOM in a position where he publicly demands to know something that BDLR will now reveal in open court on Tuesday, thoroughly demolishing the defense.

The defense may need to have an ambulance standing by at the ready.”

It’s not as if the defense has not asked for such rude treatment. MOM’s behavior must be especially galling to BDLR, who is limited to responding in court to issues properly before the court. MOM’s incessant whining, added to his blatantly dishonest effort to try the case in the court of public opinion would try Job’s patience, and I do not get the feeling that BDLR is a patient man.

Wise man say:

If you keep drawing a target on your chin while daring your enemy to hit you, sooner or later he will break your jaw and put you in the hospital.

This thinly disguised effort to get more time to replenish the defense coffers by falsely blaming the prosecution for the need to continue the trial date may have been the last straw.

After all, as with all of his miseries, the defendant has only himself to blame.

Any complaint about lack of money should draw a comment about the $100 grand that went to a bail bondsman because the defendant and his wife lied to the Court about their funds.

Any complaint about being pressed for time and needing a continuance should draw a comment that the multiple month delay last summer was caused by the defendant and his wife lying to the Court about their funds.

Back in December we saw BDLR fire a couple of shots across the defense bow with his reference to two identifiable voices in the background of a 911 call and his reference to Chris Serino’s multiple capias drafts recommending that the defendant be charged with murder 2 and eventually manslaughter. That silenced MOM until last week when he moved for the continuance.

Whether or not this is a Gotcha! game, the prosecution has to turn over all exculpatory information that it has as well as all information obtained from the phone that it intends to introduce at trial. I seriously doubt that any information obtained from that phone is exculpatory. I believe the information from 2/26, assuming that it has been retrieved from the phone, will be introduced at trial. Therefore, the prosecution must provide it.

If they were unable to retrieve it, they are going to have to explain why.

I do know this: If the defendant had not squandered so much money and defense counsel had used it for its proper purpose and retained a phone technology expert, we might not be having this conversation.

Assuming I have called this one right, BDLR will have delivered a mighty fine birthday present to Trayvon and his family on his 18th birthday.


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