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.


Trayvon Martin’s Murder Forces Us To Confront Racism

December 27, 2012

Thursday, December 27, 2012

I realized the defendant was lying when I first read his narrative about the shooting.

Why?

Because I believe it’s extremely unlikely that an unarmed person would flee from a menacing stranger following him and, after successfully getting away, voluntarily approach, engage and attempt to beat that stranger to death with his bare hands.

That story is ridiculous. It made no sense to me when I first read it and it makes no sense to me now.

With two exceptions, I never have understood why anyone would believe that ridiculous story.

As a former criminal defense attorney and law professor, I certainly understand, support and believe in the presumption of innocence. I trained myself to think that way and always searched for the weaknesses in the prosecution’s case against my clients. I had no problem exploiting those vulnerabilities for the benefit of my clients. I suspect that most of the lawyers and law professors who have publicly supported the defendant did so from the perspective of presuming that he spoke the truth.

Since I no longer practice or teach law, I believe I can evaluate this case from a more objective perspective.

I cannot and will not presume that an obvious bullshit story is the truth.

I have reviewed all of the evidence released to the public to date and I have not found any evidence that supports the defendant’s story. Instead, his multiple inconsistent and contradictory statements conflict with the physical and forensic evidence. In fact, he has admitted that he shot and killed Trayvon Martin after he had him under control with a wrist lock. He said he pulled out his gun, extended his right arm, aimed to avoid shooting his left hand, and fired the single shot that killed Trayvon Martin. The terrified, prolonged and desperate shriek protesting the depraved execution that was about to occur finally and forever was silenced by the gunshot.

No one is going to believe that the defendant uttered that inhuman shriek with a loaded gun in his hand.

I feel obliged to remind my former colleagues that the presumption of innocence does not require them to blindly accept a liar’s story and actively defend that liar by supporting his effort to demonize an innocent victim and his parents. I am offended, horrified and disgusted by the unrelenting attacks on Trayvon, his family and their supporters. I have no respect for anyone who participates in or supports those attacks, including members of the mainstream media who publicize them, and by so doing, legitimize them.

Enough is enough.

We do not need or want to hear any more lying racist Zimmermans polluting the news.

The Trayvon Martin murder case is much more than a set of hypothetical facts to be discussed in a classroom. It is a real case involving real people and I think our responses to this tragedy reveal much about ourselves as individuals and as a society.

For example, in order to believe the defendant’s story, one would have to believe that Trayvon Martin acted like a stereotypical Black Gangsta thug in a Hollywood action movie. Would any Caucasian person believe the defendant’s story, if the person he killed were Caucasian?

Is it not easier for Caucasians to believe his story because the victim is Black?

I believe we would not have heard about this case, if Trayvon Martin had been a Caucasian kid. The defendant would have been arrested and jailed that first night. He would have been charged with second degree murder and prosecuted without any of the publicity and controversy that we have seen.

The most important lesson of this case is that racism is alive and well in our nation. The defendant’s characterization of Trayvon Martin presents each one of us with a litmus test. Those who accept and believe what he said are failing the litmus test and seriously need to ask themselves why they were so willing to believe such an obvious lie.

Those who continue to believe the defendant in the face of overwhelming evidence that he is a liar may be beyond help.

We live in a racist society and nothing will change unless we admit that we do and we commit to ending racism. As always, the self is the place to start changing society.

Trayvon Martin will not have died in vain if his death becomes the rallying point for a systematic, determined and prolonged effort to once and for all eliminate racism in our society.

Unless we succeed, we will remain a racist and failed society.


Tomorrow is Motion Day in the Trayvon Martin Murder Case

December 10, 2012

Monday, December 10, 2012

I have just about fully recovered from food poisoning, but I am still a bit spaced out, so please bare with me.

Tomorrow is motion day in the Trayvon Martin murder case and one of the more interesting motions is the defendant’s motion to seal his text messages, emails and journal entries until both sides can review them. O’Mara claims release of the evidence will “adversely affect the proper administration of justice in this case, and may make it impossible to find an appropriate jury unaffected by this information.”

He must be referring to that select group of racist bigots and right-wing wackos to whom he constantly pitches his disinformation campaign.

There are reports that he sent Tracy Martin an abusive email and used the N-word “when referring who to look out for when on patrol in his Sanford, Florida neighborhood.

I do not believe the civil suit against NBC has any chance to succeed, but I believe it certainly opened the door to publicize his use of the N-word, assuming he did so.

[H/T to Rachael for providing the links to those two reports]

He also wants to be relieved of the burdensome GPS bracelet that he has to wear.

Well, I guess I would too, but I did not shoot to death a peaceful and nonviolent Black teenager who was armed with a can of iced tea and a bag of Skittles and talking to his girlfriend on his cell phone while walking home in the rain. I am getting really tired of his incessant whining. I think he should be in jail because he is a danger to the community.

Regardless of my opinion, the time period within which to have moved for reconsideration of Judge Lester’s orders expired long ago, so this motion should be denied as untimely.

What do y’all think about these motions?


Zimmerman: O’Mara Adds Sanford Police Officials to Defense Witness List

October 25, 2012

Rene Stutzman reported late yesterday in the The Orlando Sentinel:

George Zimmerman’s lawyers Wednesday notified prosecutors that their witness list now includes a who’s who of the Sanford Police Department’s chain of command at the time of Trayvon Martin’s death, including the police chief, major crimes captain, sergeant and case detectives.

-Snip-

Wednesday’s defense witness list has on it a dozen names, including former chief Bill Lee; Bob O’Connor, the major crimes captain who oversaw the investigation; Lt. Randy Smith, the former sergeant who supervised the detectives investigating the case; and lead Investigator Chris Serino.

As I have written here and here, this hullabaloo is much ado about nothing, as far as the Zimmerman case is concerned.

The reason is that the opinions of the various individuals regarding the sufficiency of the evidence against Zimmerman are irrelevant and inadmissible at Zimmerman’s trial.

The scheduled depositions may have an impact, however, on the ongoing federal investigation into whether Zimmerman may have violated federal laws prohibiting hate crimes when he killed Trayvon Martin.

I said “may” because I suspect that the federal investigation may have widened to include investigating the identified individuals and others for conspiring to conceal Zimmerman’s commission of the murder by not charging Zimmerman with a crime.

I think they would be well advised to consult with counsel before their scheduled depositions to discuss whether they should assert the Fifth Amendment and refuse to answer any questions pertaining to the investigation and their respective roles.

I believe there is much more to this story, so no one should be surprised if the depositions are suddenly cancelled without explanation.


Zimmerman: Judge Nelson Should Fine Mark O’Mara $1,500 for Publicizing his Motion for Prophylactic Sequestration

October 24, 2012

I believe Judge Nelson should fine Mark O’Mara $1,500 for posting his Motion for Prophylactic Sequestration of Witnesses in the Zimmerman case on his website.

I criticized this bizarre motion in Zimmerman: Defense Motion for Prophylactic Sequestration of Witnesses Reaches a New Low.

I said,

First, O’Mara is revealing the opinions of cops overseeing an investigation. Their opinions are irrelevant and inadmissible. The evidence is whatever it is and it alone constitutes probable cause to believe a crime was committed or it does not.

Second, revealing their opinions in a motion is an underhanded way of creating an excuse to publicize that they opposed charging Zimmerman with a crime.

Third, if they were genuinely concerned about a need to order witnesses to not collaborate with each other, they should have filed the motion under seal.

Fourth, it would have been in the best interest of the defense to have the witnesses collaborate with each other so that they all objected to filing criminal charges, but that sounds like what they were going to do anyway. Therefore, there was no need for the relief he sought in the order.

I concluded:

For all of these reasons, seems pretty obvious to me that the real purpose of the motion was to publicize what should have been kept private; namely, that the brass did not want to charge Zimmerman.

The more that I think about this motion the more irritated I become.

The scope of permissible discovery is very broad and not only includes the right to discover all information relevant to the lawsuit; it also includes the right to discover all information that might reasonably be expected to lead to the discovery of relevant information.

Because the scope of permissible discovery is so broad, there have to be some limitations on what the lawyers can do with the information they obtain through discovery. Keeping the information private is one such limitation.

Let us now take a look at depositions.

Lawyers depose (i.e., question) the opposing party’s witnesses under oath in the office of the lawyer who represents the opposing party. Other than the two lawyers and the witness, the only person present is a certified court reporter who administers the oath to the witness and records everything said by the lawyers and the witness during the deposition.

There is no judge to rule on objections. Instead, objections are noted for the record and the witness answers the question. Later on, if the trial court orders the deposition published and it is read in open court, the judge can consider the objection and rule on it. Depending on the ruling, the answer given by the witness during the deposition may or may not be read in open court.

In extraordinary circumstances during a deposition, the lawyers may suspend it to go to the courthouse to seek a ruling on an objection before resuming. The basic idea, however, is to allow the lawyers to conduct a deposition to create a thorough and private record of witness responses.

I emphasize the importance of privacy because the scope of a deposition may intrude into sensitive and private matters that might embarrass a witness, or protected matters such as trade secrets that might compromise a business, if publicized.

O’Mara’s very public revelation, in his motion for prophylactic sequestration of witnesses, of what the witness disclosed during the deposition about the opinions of the members of the group of Sanford Police Department officials regarding whether to charge Zimmerman with a crime is a major game misconduct because he revealed private information that most of the members of that group did not believe Zimmerman should be charged. Not coincidentally, that information could benefit Zimmerman by influencing prospective jurors to believe that Zimmerman should not have been charged with a crime, let alone second degree murder.

Why is that bad?

The answer is that a jury verdict must be based only on the evidence admitted in court. The opinions of the police officials are not evidence and have no evidentiary value. The rules of evidence do not permit that type of testimony to be presented at trial because it might influence jurors to base their verdict on opinions or speculation of the police officials rather than the evidence.

O’Mara knows this or should know it and this is why he never should have filed his motion for prophylactic sequestration of witnesses. BTW, this is an extraordinary and unusual request that I have never heard of and I do not believe there is any legal authority that supports it. Nevertheless, he was so eager to publicize the dissenting opinions of the police officials that he filed the motion without citing any legal authority authorizing Judge Nelson to grant the relief he requested, despite a rule that requires a lawyer to cite legal authority in support of any request to have the trial court do something.

Then he published his motion on his website for all the world to see.

This is why I am so offended by what he did.

I would be furious, if I were Judge Nelson and I would strike the motion, hold him in contempt, and fine him $1,500. I would do this in open court at Friday’s hearing for all the world to see. I also would warn him that if he does it again, I would put him in the slammer for a week.

Then I would ask him to give me a reason why I should not impose a gag order as requested by the prosecution.

I would, of course, give due consideration to the Florida Sunshine Law and the public’s right to know what is going on. I would probably end up denying the motion for the gag order without prejudice. That would allow the prosecution to refile it, if it should decide to do so.

BOTTOM LINE: O’Mara needs to stop trying his case in the Court of Public Opinion.


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