How to Nullify Jury Nullification and Obtain Justice for Trayvon Martin

January 2, 2013

Wednesday, January 2, 2013

I was inspired by Xena to write this article today to warn the prosecution and all of my readers to take the defense seriously in the Travon Martin murder case

She said,

“In GZ’s case, O’Mara would need 6 jurors and the required number of alternates, ALL who believe in GZ’s innocence before they are sworn in as jurors. Nullification in GZ’s case would require all six jurors to find him innocent. That— ain’t — gonna— happen.”

I hope you are right, Xena, but I am not certain that you are.

I prefer to evaluate the case in terms of potential strategies and probable outcomes. I am compulsive by nature and always evaluated my cases in this fashion. There is no downside to being prepared.

I think the defense is focused on the only argument that it believes has any probability of success and that is jury nullification.

Every effort and every public statement appears to be focused on poisoning the pool of prospective jurors in Seminole County by appealing to racism demonizing Trayvon Martin as a crazed Black Gangsta who deserved to die and portraying the prosecution and the Florida Department of Law Enforcement as outsiders who overruled the local authorities and bypassed a local grand jury to prosecute the defendant for political purposes to appease Black “racist rage.” That is, the defense is attempting to maximize the probability of success through the use of sleazy character assassination and grotesque propaganda in a highly focused way that I have only seen in used in elections.

Keep in mind that the defense does not necessarily need to have convinced all six jurors to vote “not guilty” before the trial starts. They just need to convince one or two strong personalities who will serve as their voices during deliberations refusing to vote guilty and pushing the same buttons that O’Mara, West and Robert Jr., are pushing until they finally achieve consensus.

Whether this strategy will succeed in the face of an extremely unlikable defendant and a veritable mountain of evidence of his guilt is unknown and difficult for me to estimate at this time.

I can only do what is within my power to do and that is to illuminate and publicize what I see hoping that my efforts to warn will inspire others to act in ways that will reduce the probability that the defense strategy will succeed.

I believe this case will be won or lost in jury selection.

I firmly believe that an unbiased and unprejudiced jury of reasonable people will reject this defendant’s claim off self-defense and convict him of murder in the second degree. I do not believe there is a reasonable probability that such a jury will acquit this defendant.

However, I believe there is a statistically significant probability that a biased and prejudiced jury will acquit this defendant despite overwhelming evidence of guilt.

If for no other reason than to avoid overconfidence, the prosecution needs to focus on jury selection now to develop a strategy to identify and excuse potential pro-defendant stealth jurors willing to lie in order to get on the jury and wreak havoc.

The prosecution should consider retaining one or more jury consultants familiar with the demographics of Seminole County and polling residents regarding their knowledge and opinions of the case. Careful consideration should be given to developing a comprehensive juror questionnaire that exposes not only bias or prejudice but efforts to conceal bias or prejudice. The prosecution should request additional peremptory challenges since they may be the only means it has to strike dishonest stealth jurors. The use of individual attorney-conducted voir dire is critically important as is cultivating the art of asking open-ended questions, carefully listening to the answers and following-up with insightful and respectful questions to discover and reveal possible biases or prejudices.

I recommend against sequestering the jury because sequestration is equivalent to being imprisoned and that will cause juror hostility to the court to no good end.

This team of prosecutors is on unfamiliar ground and should not assume that they will be regarded with the usual degree of respect to which they have become accustomed on their home turf. They must do everything possible to avoid being seen as an outsider seeking to convict and imprison a decent local citizen to serve the governor’s political agenda.

The defendant’s supporters do not fight fair. They have no respect for the truth and will use any tactic to discredit and intimidate. I know what I am talking about because they have been impersonating me, including using my photograph as an avatar at the Huffington Post and other sites, spreading false and malicious information to discredit me and my efforts to seek justice for Trayvon.

What they have done and continue to do to me pales into insignificance when compared to what they have done to demonize Trayvon and intimidate Dee Dee, Sybrina Fulton, Tracy Martin, the Martin family, Benjamin Crump, Natalie Jackson and others who support justice for Trayvon.

The prosecution is not only on unfamiliar ground in Seminole County, it’s on unfamiliar ground in a propaganda war.

The sooner it acknowledges the potential danger and develops a comprehensive strategy to deal with it the more likely it will obtain a just result and convict this defendant.

Zimmerman: To Sequester or Not to Sequester, That is the Question

September 21, 2012

I oppose juror sequestration and recommend that it be abolished. I believe many judges, prosecutors and defense attorneys agree. I write to support my recommendation and to solicit your views regarding this important matter.

I practiced law in Seattle for 30 years. I do not recall any trial during that time where jurors were sequestered. I am not saying it did not happen, but if it did, I do not recall it.

Judges, prosecutors, defense lawyers and jurors hate the idea. So do the people who have to police the jurors by screening all information that comes to them and redacting anything about the case.

The jurors might as well be locked up in jail and they never would have agreed to serve as jurors, if they knew what it was going to be like.

I have discussed this issue with other criminal defense lawyers from other parts of the country, whom I got to know through my involvement in the National Association of Criminal Defense Lawyers, and we all agreed that sequestration is a bad idea. We knew the jurors would hate it and we feared they would take out their frustrations on our clients.

As I devoted more of my time and efforts during my career to learning forensics and representing people potentially facing the death penalty, I found myself in more complex and lengthy trials.

For example, one death penalty trial went on for 9 months. The shortest trial lasted 3 months. The strain on everyone involved in the process, including the jurors, was incalculable.

If they had been denied access to the comforts of home and hearth during that time, I would not have been surprised if some of them had cracked and assaulted their keepers or just fled the madness and disappeared.

I knew one thing for certain. I would never have tolerated being sequestered, if I were a juror. For that reason alone, I would never ask for a jury to be sequestered and would oppose a prosecution request to sequester.

At some point, we have to get smart, acknowledge human nature, and stop trying to hold back the sea. Jurors are going to watch TV, read newspapers, listen to the radio, surf the internet and discuss the case with their domestic partners and close friends.

Rather than ban those activities and set them up to commit perjury by insisting they swear not to do those things, we should educate and warn them regarding the potential dangers of outside influences and remind them daily of their solemn duty and responsibility to base their decision on the evidence introduced in court.

Jurors should be encouraged to note and inform the judge and the lawyers when outside information about the case reaches them. Segregating that information into a category labeled with the word “Ignore,” reinforced by a jury instruction ,probably is the best way to limit, if not eliminate, the problem posed by outside information influencing the jury to reach an improper verdict.

Treating jurors with honesty and respect, instead of suspicion and distrust, as though they were naughty children requiring continuous adult supervision, is the mature, honorable and decent way to go.

Disregarding inadmissible evidence is a task judges are required to perform on a regular basis. Some take that obligation seriously and some do not. Some are better at it than others.

Some judges are so corrupt that they will invent evidence to support conclusions they intend to reach, despite the evidence.

The jury system was created to address this last category of judges by preventing the Crown from depriving people of their property, liberty and lives without just cause.

Since the jury system was created, judges and lawyers have attempted to control what jurors do and how they do it. The clearest example that comes to mind is the effort to outlaw jury nullification.

Jury nullification occurs when a jury decides to disregard the law as set forth in the instructions and return a verdict of “Guilty” or “Not Guilty,” according to what it decides to be the “right” decision, regardless of the law.

Here are two examples of jury nullification that illustrate opposite extremes.

In the first case, a jury acquits a young man of failing to register for the draft during an unpopular war despite evidence that he refused to register because he was opposed to the war.

In the second case, an all White jury convicts a Black defendant of the rape-murder of a White woman and sentences him to death, despite DNA evidence that exculpates him.

The fear of jury nullification is so strong that any lawyer who mentions it is likely to be summarily held in contempt, ordered to jail and a mistrial granted.

A reasonable possibility exists that a jury will be sequestered in the Zimmerman case, assuming Judge Nelson denies Zimmerman’s motion for immunity from civil and criminal liability and the case proceeds to a jury trial. Due to Florida’s Sunshine Law, we are familiar with most of the evidence that will be admitted at the trial, as well as evidence that will be excluded.

Assume that you have been selected as a juror in the Zimmerman case.

My questions:

(1) Having been exposed to inadmissible evidence, such as W9’s accusation that Zimmerman sexually abused her multiple times during a ten-year period that began when she was 6-years-old and he was 8-years-old, do you believe you could ignore her accusation and base your individual verdict only on the evidence admitted in court?

(2) Assuming your answer is “Yes,” why do you think you could ignore it?

Now let us expand the scope of the two questions to include all of the evidence and information you know and your opinion of Zimmerman’s guilt or innocence. Have your answers changed?

(3) Do you believe it is possible for you to presume Zimmerman innocent, given what you know?


(4) Knowing what you know, would you find him “Not Guilty,” if the prosecution fails to meet its burden of proof because it did not introduce evidence that you recall?

Aye, there’s the rub.

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