We must end racism to obtain justice in our courts

February 28, 2014

Friday, February 28, 2014

Good afternoon:

Never forget that the battle for justice started long before the pyramids were built and it will continue as long as we humans continue to exist.

To get a sense of how far we have come and how much we have accomplished, let’s take a brief review of how the law has changed since our Founding Fathers declared their independence from England, fought and won our independence and wrote our constitution.

The Declaration of Independence, the United States Constitution and the Bill of Rights are extraordinary documents that we should treasure, respect and protect.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Purchased in sweat and blood over many centuries and honed during the enlightenment, this sentence is a startling, radical and revolutionary rejection (1) of the divine right of kings to govern without the consent of the governed and (2) the rich aristocracy that owned most of the wealth and real estate not owned by the king. With the exception of the Church of England and a merchant class that grew wealthy and powerful during the industrial revolution, no one else had any civil rights, wealth or political power. No justice existed for them and with few exceptions, none of them expected any justice.

The merchant class, by the way, created the Liberal Party in England to advocate for their economic and political agenda, which was freedom to trade with whomever they pleased without oversight by officials of the Crown. Using The Wealth of Nations by Adam Smith as their bible, they claimed that the invisible hand of greed was the only appropriate form of regulation. In making that argument, they conveniently ignoring that Adam Smith had cautioned that some government regulation would be necessary to control runaway greed.

Smith was right because one of the atrocious activities that some members of the merchant class engaged in was shipping boatloads of African slaves to the southern states where they were sold at auction to wealthy plantation owners who used them to till the soil, harvest their crops, clean and maintain their homes and also wash their clothes. Some of them also abused the pretty females and handsome males sexually whenever they wanted.

Slaves were slaves for life and the owner had the right to discipline them in any manner, including the right to torture and kill them without having to explain why they did it or face any consequence.

The merchant class proved many times over from the late 18th century until President Franklin Roosevelt finally called an end to their reign of terror. that greed and unregulated capitalism are incredibly destructive.

The neoliberals of today are the wealthiest 1% of our population. They seek to enrich themselves at the expense of everyone else by turning back the clock to the 19th century and they are pitching their thoroughly discredited ideas in an attempt to convince we the people whom they plan to exploit that it is in our best interests to support their agenda and vote for their candidates because our fortunes will improve as the additional money and wealth they accumulate at our expense will eventually trickle back down to us.

In other words, a rising tide raises all ships.

The Founding Fathers taught us how to respond,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The term “all men” necessarily includes the 1% and they have no right to exploit us for their fun and profit.

The criminal justice system will work only as well as the people who participate in it.

Justice is an idea, not a commodity for sale to the highest bidder. Justice cannot happen in the presence of racism, special interests and corruption. Without honesty, and diligent effort in good faith by all participants, justice cannot happen. The criminal justice system cannot produce just results when jurors, lawyers, judges, police, forensic experts and witnesses with hidden agendas attempt to rig the outcome.

We have witnessed the tragic results of racist thinking by white people who believe that all black male teenagers are dangerous.

We have seen them deny that they are racist.

Yet we know that the same white people who believed that Trayvon Martin and Jordan Davis were dangerous would not believe that two white boys the same age were dangerous.

Events have a way of focusing our attention on problems that need fixing. Viewed with detachment from afar, which is what we must do to get an objective diagnosis of what ails our criminal justice system, it should be clear to everyone with eyes to see that we are not living in a post-racial society.

We absolutely must tackle this problem head on and so discredit racism that people come to regard it as an evil delusion that is not supported by any evidence.

Rather than feel dispirited and depressed, we should realize that we are being called by these events to do all that we can to correct a terrible wrong.

Yes, we live in trying times with injustice and death all around us. We would like to walk away, but those who have been called know in their hearts and minds that they cannot walk away and pretend that reality does not exist.

We have limited time and unfinished business to resolve.
Fortunately, we have each other to rely on.

We are many and they are few.

events are propelling us to take action

Racism needs to end and until it does no one should expect the criminal justice system to produce just results.

We shall overcome

October 12, 2013

Saturday, October 12, 2013

Good evening:

Crane and I were gone most of the day. Since we returned, we have been reading and talking about the awakening and renewed commitment to seek justice inspired by the shocking injustice in Kendrick Johnson’s case that so many of you have so clearly expressed.

We feel the same way and we intend to use this blog to not only seek justice for Trayvon, but to seek it for Jordan Davis, Kendrick Johnson, their grieving families and everyone else who has been denied their inalienable rights to life, liberty, and the pursuit of happiness in a just and color blind society. Justice for Trayvon is the name and symbol of our quest.

In a comment this afternoon, Mary Davis said,

I know what happened in Trayvon’s case knocked the sails out of us, but we can’t stop now.

She is right and her comment got me thinking.

This is my answer.

The result in Trayvon’s case disappointed me, but it did not knock the sails out of me.

I have learned how to be patient doing death penalty work. In the Darrold Stenson case, for example, where material exculpatory evidence was withheld by the prosecution from me (I was defense counsel) resulting in a guilty verdict and a death sentence, the Washington State Supreme Court finally agreed with our argument and reversed the conviction and death sentence in the spring of 2012. The sentence was imposed in 1994, so justice took 18 years.

I am convinced that something far bigger than ourselves is dictating the direction and pace of events. Racism, corruption and injustice are rampant. Innocent people are being murdered and the perpetrators are not being held accountable.

Necessary change must happen but it cannot happen all at once.

Justice for Trayvon must necessarily be sought outside the legal system because the Double Jeopardy Clause prohibits a retrial and the prosecution is not going to appeal a case that it did not intend to win and cannot retry.

Justice for Trayvon will be found in the court of public opinion. I think this week’s episode of South Park capitalized on widespread interest in the case and the pervasive belief that George Zimmerman got away with murder. He did much to hang himself after the acquittal by swaggering around like the cowardly bully that he is. Result: he was portrayed as the government’s go-to weapon when it wants to silence a black troublemaker because he’s an expert at murdering black kids and getting away with it. However, he killed a white kid disguised in black face, so he was summarily executed in the electric chair.

Rather than offend our national sense of justice, which would have been the case if a majority of Americans believed he was a hero for defending himself against a crazed black thug who attempted to kill him, most people understood that the result of his trial would have been different if Trayvon were a white kid and they laughed at his execution on South Park.

I don’t believe anyone needed to have that explained to them.

I believe the only people who were offended by the show are the white right wing racists that make up the right wing hate machine.

I don’t know how the writers managed to pull that off in a nation of people shocked, dismayed, and still grieving about the injustice of the verdict, but they did.

And they mocked George Zimmerman and got us to laugh at him.

Nothing will bring back Trayvon Martin. I think a nation shocked by Trayvon’s death, the injustice of the verdict, and thoroughly disgusted with George Zimmerman is actually a better result than a conviction and life sentence.

George Zimmerman’s life will be a living hell, which is his just reward

Now we are witnessing a call for help to right a wrong in Valdosta, Georgia. Word is spreading like wildfire through the power of instant communication via the internet to reopen the investigation into Kendrick Johnson’s suspicious death. Experts in death investigation and forensics are stepping forward and speaking out. They are identifying the problems with the investigation and calling his death a homicide.

The cover-up is falling apart exposing yet another corrupt and incompetent local police department (the Lowndes County Sheriff’s Office) and the Georgia Bureau of Investigation, which conducted the autopsy and reached the utterly ridiculous and indefensible conclusion that his death was accidental due to positional asphyxiation.

Unfortunately, during the long course of human history, most people have been far too willing to accept corruption and injustice as just the way it is, even when they, or someone they know, have been victimized. They felt too isolated and powerless to fight back. For example, more than 80 innocent defendants pled guilty to felonies they did not commit during the late 1990s and agreed to serve lengthy prison sentences without complaint. Every one of them was framed by corrupt members of the out-of-control Ramparts Division of the Los Angeles Police Department. At least one of them sustained multiple gunshot wounds for allegedly resisting arrest even though he submitted to arrest.

The horrible story unravelled when one of the rogue police officers was arrested for possessing cocaine in his locker. He snitched on his fellow officers in exchange for favorable treatment. Eventually the truth was revealed and all of the wrongful convictions were set aside.

Even though they were represented by counsel, not one of the more than 80 innocent defendants believed he had a realistic chance to be acquitted and not one of them was even willing to go to trial.

Tragically, corruption and injustice tend to thrive and be tolerated until some terrible tragedy occurs that so offends people that they finally say enough is enough.

George Zimmerman’s cold blooded execution of an innocent and unarmed Trayvon Martin screaming for help and his mother and begging for his life was such a tragedy. People all over the world were shocked and horrified. It brought us together here and it brought many others together at other sites. All of us watched the trial and we ultimately saw through the pretense of a serious prosecution. We have been changed forever by that experience.

Nine months after Zimmerman murdered Trayvon, we were horrified again when Michael Dunn murdered Jordan Davis at a gas station because Jordan refused to turn down the music he was listening to and did not show Dunn enough respect. Ironically, Dunn will be prosecuted by Angela Corey, the State Attorney who oversaw the failed prosecution of George Zimmerman and expressed satisfaction with the result.

We will be watching that trial and calling her out every time she fails to do something she should have done or does something she should not have done. I and others like me who are experienced trial lawyers will be watching every move she makes. She has a lot to prove and everything to lose. She will not get away with another lackluster effort to create the appearance of justice. We will call her out, if she allows another racist right wing nutcase like B-37 to get on the jury. We’ve seen the movie and we are familiar with the script. Never again.

And now we have Kendrick Johnson’s shocking case to grab our attention and galvanize us back into action.

Nothing will ever change unless we take action and make things change. Unfortunately, humans have to be shocked out of their generally passive and accepting everyday lives before they will come together, focus on solving a problem, and take action to git ‘r done. These three horrific cases are waking us up to what we must do to reclaim our inalienable rights to life, liberty, and the pursuit of happiness in a just and color blind society. We cannot ignore these tragedies. We cannot shrug our shoulders and turn our backs on Trayvon Martin, Jordan Davis, Kendrick Johnson and their grieving families because those three beautiful, young, and innocent children could just have easily been our children or even ourselves.

Justice for Trayvon is justice for everyone and we now have three crystal clear examples that racism is alive and well in this country and our criminal justice system is aiding and abetting it rather than producing just results.

I could no more ignore the message conveyed by these three tragedies than stop breathing.

By working together using the power of the internet to communicate, we can and we will make the mountains tremble.

Welcome to Day 8 Liveblogging Jury Selection in Zimmerman Trial

June 19, 2013

Wednesday, June 19, 2013

Good morning:

Trained Observer posted the following comment yesterday at 6:28 pm. I have decided to use it as a scorecard for the next round of voir dire.

I recommend we use it as a starting point for our discussions during the day about the various prospective jurors. Feel free to agree or disagree with her recommendations. By actively involving yourselves in the process of selecting and exercising challenges while witnessing the lawyers doing the same thing, you will be participating in a unique learning experience.

I do not believe this has ever been done before, so celebrate and learn.

The selection process is described below the scorecard.

My recommendations for next round, hoping hardship rids line-up of some “iffy” candidates, and strikes can be saved for a final shaping after defense squanders its share. (Admittedly, there’s so very much we don’t know about these PJs.)

B-12: Middle-aged white female; works late shift. Likes CSI, says she’d heard Fogen followed Trayvon. KEEP FOR NOW

B-29: Hispanic female nurse on an Alzheimer ward with 7 kidsl lived in windy Chicago at time of shooting. WEED OUT ON HARDSHIP

B-76: White middle-aged female who says Fogen had an “altercation with the young man. There was a struggle and the gun went off.” TRY TO WEED OUT

B-7: Middle-aged white male; NPR listener. Recalls when Florida implemented “stand your ground” and debate over whether needed.KEEP

B-35: Middle-aged black male owning a vending biz. Critical of Sharpton & Jackson; says this case not racial. KEEP

B-37: Middle-aged white female who works for a chiropractor and has a ton of of pets. Described protests in Sanford as “rioting.” STRIKE-OLA

B-51: Retired white female from Oviedo with a dog and 20-year-old cat. Knows a good deal about the case, but said “I’m not rigid in my thinking.” KEEP

B-86: Middle-aged white female working at middle school. Says if Trayvon had not been “expelled” from school in Miami — she oughta know the diff between expelled and suspended — “this could have been prevented.” DUH, WEED OUT

E-6: A young white female and mother who used to work in financial services. Used case as teaching moment for her kids, warning them to not go out late. KEEP

E-40: White female in 60s living in Iowa at shooting; heard about on national news and recalls shooting in a gated community and a teen killed. KEEP

E-54: Middle-aged white male with teenage stepson who wears hoodies. Saw photos of Fogen’s head and face with boo-boos. KEEP

E-73: Middle-aged white female from Sanford’s artsy community, raising late brother’s 15- and 18-year-olds. Says media interjected race in case. KEEP FOR NOW

M-75: Young AA female says many friends have opinions on case, but claims she doesn’t.KEEP

B-61: Young white female; remembers “after the protesters, it seemed to turn more into a racial issue…I don’t think it’s a racial issue.” KEEP

B-72: Young male doing maintenance at a school and competes in arm wrestling. Avoids news because he does not want to be “brainwashed.” TRY TO WEED OUT

E-22: Middle-aged AA female; says after shooting Sanford police should have booked Fogen and asked more questions. KEEP

E-13: Young white female collegiate who works two jobs; Heard shooting was a “racial thing.” KEEP FOR NOW.

E-28: Middle-aged white female nurse; claims she knows little about case and has no opinion about Fogen’s guilt. KEEP

K-80: Middle-aged white female with kids who has not followed case; Cconsiders “racial undertones” in case “disturbing.” WEED OUT ON HARDSHIP

K-95: Middle-aged woman who’s a full-time student and “IT geek” with two kids; Critical of protests calling for Fogen’s arrest. TRY TO WEED OUT

P-67: Native Mexican wants to serve on the jury, describing civic duty. “Some people think it is a racist thing,” he said of the shooting. A KEEPER

G-14: Middle-aged white female who recalls a “lot of anger, a lot of people upset” that Fogen was not arrested immediately. KEEP

G-29: Young black female has lived in Seminole County for eight months. Cites racial tension build-up, but claims she “stayed away from it.” KEEP

G-47: Young white male assistant restaurant manager says Fogen appears to be “stuck in the worst situation” possible. KEEP FOR NOW

?-63: Young, unemployed apparently mixed race male. Knows a little about case but pans stereotyping and says people sometimes interject race into cases . KEEP FOR NOW

G-66: Retired white female who cares for toddler grandson and moved to Central Florida in 2011. Saw photos of Fogen injuries and, “I felt sorry for him.” STRIKERAMA

G-81: Tall black male lives less than a half mile from shooting. Cites Sanford’s racial divide, but says media has misportrayed the city. KEEP

H-6: Young white male who heard call Fogen made to cops before shooting. “He sounded like he was concerned for his neighborhood.” TRY TO WEED OUT

H-7: Red-haired 50s male in a biz suit citing a “big brouhaha in Sanford,” describesd protesters as “a nuisance” and says “I still don’t know why it became a high profile case.” STRIKOLA

H-18: A dark-skinned looker in his 20s with accent who’s a mechanic, owns his shop with a partner and moved here from Kuwait. Avoids discussing certain topics. “When it’s politics, religion or race, I just don’t get involved.” KEEP

H-29: White-haired male calls national civil rights leaders who led protests in Sanford “a little circus come to town.” Says “negative for the city,” … “That honestly turned me off.” TRY TO WEED OUT

H-35: Young female who said she knows little about case. She “liked” a photo of Trayvon on Facebook. Needs to move by and of June, claiming hardship. WEED OUT ON HARDSHIP

H-81: Middle aged male (a lawyer? What kind of lawyer? Does he sit around all day looking at real estate contracts … or does he do trial work?) describes shooting as an “incident” between Fogen and Trayvon; calls shooting a “very tragic situation.” He has two pending civil cases before Nelson. KEEP FOR NOW

H-69: Preggers PJ who saw news about case on TV at work. Mentions several times that she recalled seeing pictures of Trayvon as “a young child.” WEED OUT ON HARDSHIP

H-86: Young white female says she knows almost nothing about the case. Says she keeps up with current events, but “certain cases and things I don’t follow.” KEEP

I-5: Middle-aged AA male says he heard self-defense was involved with case, at one point referring to Fogen as “gentleman that was defending himself.” KEEP

I-19: Young white female says she hasn’t followed case and knows only basics: “I don’t watch the news, I don’t read the news,” she, who lies or is really stupid, said. STRIKE

I-24: Older white woman who followed case at first, but then “just kinda tuned out.” Says “a young man lost his life and another man is fighting for his life.” STRIKE

I-33: Older white male, saying “more I heard, the less I wanted to hear.” Heard a 911 call involved in case, and “some controversy as to who was doing the screaming” heard. TRY TO WEED OUT

I-44: Dad of 3 says he’s skeptical of media and its “negativity.” Calls himself a “sports nut.” KEEP FOR NOW

I have previously described the process of group voir dire as follows:

When she gets to 40, she will gather that group together seating the PJs in the jury box, and subsequently the benches, in the order in which they were called and likely instruct them to raise their hands indicating an affirmative answer as she asks a series of questions, pausing to record each PJ’s affirmative answer to each question.

For example, she might ask for a show of hands by each PJ who has been a victim of a crime and write down each PJs number who raises their hand.

After she completes her list of questions, the lawyers, starting with Bernie de la Rionda, will question the first PJ on the list (B12) regarding each question she answered affirmatively. After both lawyers have finished with B12, they will pass or challenge her for cause. If she is excused, she will be replaced in the box by PJ B51 (she is 7th in the order).

This process will be repeated with B51 until she is passed or excused for cause. If she is excused, her seat will be taken by B55. If she is passed, the lawyers will question B29, the PJ in the second seat in the box.

This procedure likely will be followed until 30 PJs have been passed for cause.

Then the lawyers will exercise their peremptory challenges, which is usually done secretly with the lawyers passing back and forth a sheet of paper alternately listing a PJ number until one or both sides exhaust their allotment of peremptory challenges.

If one side accepts the jury of 6 before exhausting their peremptories, they retain the right to use a peremptory challenge to excuse the PJ who replaces a member of the jury struck by their opponent after they accepted the jury.

Here’s the link to the livestream coverage.


Court resumes at 9 am EDT.

See you in court.

(H/T to Trained Observer for the excellent list)


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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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FOX News pimps for defendant in Trayvon Martin murder case

February 28, 2013

Thursday, February 28, 2013

The beat goes on as Mark O’Mara continues to shamelessly pimp for his client.

Edmund DeMarche of Fox News writes:

George Zimmerman, the Florida man who fatally shot an unarmed Florida teenager last year, wears a disguise and a bulletproof vest whenever he is in public, his attorney said.

“He never feels safe,” Mark O’Mara, his lawyer, told FoxNews.com. “His security has been cut and he stays inside his secure location all day long due to threats.”

As a result of the confinement, Zimmerman’s health has taken a turn for the worse, O’Mara said. He gained about 100 pounds in six months and is stressed about the threats and his upcoming murder trial, which is set to begin on June 10.

“If I was confined to four rooms all day I bet I’d gain a lot of weight, too,” O’Mara said.

Next time you see the Michelin Man wearing sunglasses while standing in line at the Donut Shop, be sure to tap him on the shoulder and ask him for his autograph. Maybe he will give it to you for free, although I would not bet the ranch.

On second thought, we don’t need you to do that because this Afro Peruvian descendant of African kings might pull out a gun and blow away your heart.

Now prepare yourself for this fine example of journalism at its finest:

Last year, Zimmerman spotted Trayvon Martin walking through his neighborhood, a gated community, in Sanford, Fla. Martin was walking back to a house he was staying at in the community after a trip to a convenience store.

Zimmerman started to follow him because he thought he looked suspicious. Despite a police dispatcher telling him “you don’t have to do that,” Zimmerman got out of his truck to pursue Martin.

They got into a fight and Martin was shot.

You gotta love that integrity.

But wait, there’s more:

O’Mara said he talks with Zimmerman every day. He said the couple relies on donations to survive since neither one can hold down a job.

He said Zimmerman, who previously aspired to be a judge, looks forward to the trial to begin, but has been disenfranchised about the legal proceedings thus far.

To be sure, even if his client is acquitted, O’Mara said he will likely never feel safe in his hometown or Florida.

“He’d have to go somewhere where nobody knows him,” O’Mara said.

So, O’Mara and his client are a “couple” and poor George is wearing bulletproof vests and disguises while he steadily eats himself to death because he doesn’t get to vote on the outcome of his trial.

Excuse me, while I cry me a river of tears.

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What About that Missing GPS Data?

February 6, 2013

Wednesday, February 6, 2013

Leander said at 9:10 am today:

“Obviously, when Dee Dee made her statement she had heard GZ NEN call. We would have a much better scenario concerning her statements, had SPD done it’s job and interviewed her earlier. On the other hand, they had troubles to get at the phone due to the password. That’s the crux.”

I do not agree.

I do not believe Dee Dee had listened to the NEN call before Ben Crump interviewed her. IIRC, it was not released to the public until much later. The SPD had a lot of investigative work to do interviewing witnesses and processing the crime scene. If they even thought about it, checking the phone log probably would have been a low priority item on the to-do list, until after Ben Crump revealed that Dee Dee had been talking to Trayvon when the defendant stalked and assaulted him.

While it’s theoretically possible that the GPS data for the day of the murder might help the defense, I doubt that it does because we would have seen the defense lawyers congratulating their client and we would have seen him smiling or smirking at the news.

Instead, we saw gloom, doom, resignation, desperation and a visible dislike for the client that is more consistent with bad news for the defense. I cannot imagine that MOM would have failed to mention that the GPS data exculpated the defendant, given his propensity to try the case in the court of public opinion. He would have mentioned it in support of his argument for a continuance, if it existed, instead of waving around an insignificant bar-chart during an extemporaneous and rambling plea for a continuance.

He did not give a coherent answer when she put him on the spot and asked him to provide a specific reason why he needed a continuance. The best he could do was to squeak about not having any experts even though the defense team’s mismanagement of funds is the reason why it has no money to hire experts.

If the GPS data did not exist, or if it were uninterpretable, I think BDLR would have disclosed that in open court to Judge Nelson, defense counsel and the public. He did not do that. Instead, he graciously offered “to connect the dots” for the defense, but they did not rise to the bait.

That tells me the GPS data hurts the defense, badly.

The only reason that I can think of to explain why no one touched this issue and the body language of the defense team, including the lawyers turning their backs on the defendant and leaving him behind sitting forlornly at counsel table as they left the courtroom, is that the evidence devastates his story.

To his credit, I think BDLR resisted the urge to play “Gotcha” and I respect him for that.

He has the trump card. He knows he has it, and the defendant knows it too.

Now, we do too.

The defense team is up the proverbial creek without a paddle, unless the skies suddenly open releasing a downpour of dollars into the defense coffers. I recommend not betting the ranch that will happen.

The defendant is indigent or soon will be. He cannot adequately prepare for trial without an investigator and multiple experts. They do not work for free and he cannot afford them.

Under these circumstances, his lawyers need to file a motion asking Judge Nelson to find him indigent and sign an order allowing him to proceed in forma pauperis.

The sooner the better.

Unless, of course, the defendant pleads guilty.

Why Did John (W6) Lie to the Police?

February 3, 2013

Sunday, February 3, 2013

As I’ve said before, I find it very difficult to attribute to a coincidence John’s (W6) first statement to police falsely describing an MMA-style thrashing that exactly matches the defendant’s false statement.

The statistical probability that those two false statements would coincidentally match must be vanishingly small. Therefore, I believe BDLR and the FDLE concluded early on that John repeated what the defendant told him.

I imagine that they wondered if John actually saw and/or heard what happened and knew the defendant was lying, or if he merely repeated what the defendant told him in an innocent but misguided effort to help him.

Let there be no mistake, however. Telling the police that he saw something he did not see is a lie, even if he believed that the detailed description he provided were true.

His conduct is more reprehensible, of course, if he knew the defendant lied about what happened and he repeated that lie to the police.

Let us assume for a moment that he repeated the lie knowing that it was a lie. Why might he have done that?

I offer six possible reasons.

First, the defendant may have been his friend and he lied to protect him.

Second, he may have feared him and agreed to tell the police whatever the defendant told him to say in order to protect himself and his wife from retaliation.

Third, the defendant may have threatened to harm him or his wife if John did not tell the police what the defendant instructed him to say.

Fourth, if he were a home owner, he would have had a financial interest in the outcome of the investigation. Since a conviction might result in HOA liability for wrongful death, he may have lied to protect his financial self-interest.

Fifth, he may have known that the defendant was going to follow, confront and interrogate Trayvon about neighborhood burglaries before the incident happened.

Sixth, and the most ominous reason, he may have known that the defendant was going to follow, confront, interrogate and kill Trayvon before the incident happened.

I have long suspected that the defendant had enlisted the support and cooperation of some neighborhood residents to serve as his eyes and ears. I also suspect that those eyes and ears had reported Trayvon’s presence in the neighborhood to the defendant. In other words, I believe he was specifically hunting for Trayvon when he left his house that night and I believe John was one of his informants.

LLMPapa’s video last night about Trayvon’s hoodie is consistent with this theory. He pointed out that the defendant accurately described the hoodie in the NEN call as dark gray and the defendant as a teenager; yet, the defendant would not have known either fact since it was dark and raining. The wet hoodie appeared to be black or dark blue and Trayvon had it up concealing most of his head and face.

Therefore, either the defendant had seen Trayvon in daylight wearing the hoodie or someone provided him with a description before he went hunting.

I do not doubt that BDLR and the FDLE have known this for a long time and they probably knew it when they interviewed John (W6) and he retracted his statement.

John (W6) needs to come clean and tell the whole truth.

Unfortunately, however, his credibility is no better than the defendant’s. Why would anyone believe anything he says unless it is independently corroborated?

The plot would thicken if independent corroboration in the form of the defendant’s cell phone records show a call from John moments before the defendant grabbed Shellie’s gun and went hunting for Trayvon followed by a call from the defendant to John moments after the shooting.

Ma’at, Justice, the Golden Rule and Jury Nullification

January 3, 2013

Thursday, January 3, 2013

I inadvertently muddied the waters last night on jury nullification when I responded without thinking to a question by Judy75201, who asked if the prosecution ever benefited from jury nullification. I said, “No.”

Whonoze corrected me using my own statement.

He said,

I believe the Prof. has already answered your question in the previous thread:

“Far more likely is the wrongful conviction of innocent people, which happens possibly as often as 20% of the cases.
“I fear racist jurors would increase the already unacceptable rate off wrongful convictions, if they could ignore the evidence pursuant to jury nullification and convict minority defendants who should be acquitted.
“That danger is an every day reality in the South.”

So if the defense has not met it’s burden, and, for example, an all white jury convicts a black defendant anyway, that’s an example of jury nullification that favors the prosecution.

Prof., perhaps you could explain to all of us what role the judge’s instructions to the jury play in all of this, and whether those are typically invoked for a verdict to be labeled as “nullification” rather than just “unexpected.”

The application of the label seems to be somewhat subjective, as some might consider the Simpson or Anthony verdicts to be nullification, while others would consider that the State did NOT meet its burden in either case, depending upon how each evaluates the evidence and argument presented at trial. Do I have that right?

I thought it over and here is my response.

Yes, I stand corrected. If a racist White jury convicts a Black defendant, despite a reasonable doubt, the prosecution benefits and the wrongfully convicted defendant loses.

Of course, we usually never know why a jury does what it does because jurors are not required to reveal why they did what they did and their deliberations are not recorded. Jury deliberations are sacrosanct and no one is permitted to be present in the jury room or to listen in on jury deliberations.

I did not follow the Anthony case, so I know little about it.

I think there was a reasonable doubt in the OJ case because I know the police planted pilfered blood evidence obtained at autopsy and broke the chain of custody creating all sorts of reasonable doubt. I was a DNA consultant for the defense and followed that aspect of the case closely.

Many people disagree and think the verdict was due to jury nullification by Black jurors in retaliation for the “not guilty” verdicts returned by White jurors in the Rodney King beating case. For example, Colin Black expressed that opinion here a few days ago. For the record, I do not believe the Rodney King verdict had anything to do with the OJ verdict.

And so it goes.

Let’s take a look at the core legal principles in all criminal trials.

Despite what lawyers and judges may say, a trial is only incidentally about a search for the truth. I use the word “incidentally,” because the real purpose of a trial is to determine whether the prosecution can prove beyond a reasonable doubt that the defendant committed the crime(s) charged. The jury determines the answer to that question in a jury trial and the judge determines it in a bench trial, if a defendant knowingly, intelligently and voluntarily waives his right to a jury trial and agrees to permit the judge to decide the case.

The “truth” may or may not be revealed and become known during a trial. For example, even when a defendant has confessed to a crime, there will always be a theoretical possibility, however unlikely, that he may be innocent and have falsely confessed to the crime. My next article, for example, will be about false confessions.

In addition, even if DNA evidence supports a confession, appearing to remove all doubt regarding guilt, there will always be a theoretical possibility that the DNA evidence was fabricated or planted due to forensic fraud.

The important points to remember are that a trial is a quest to determine whether the prosecution has proved its case beyond a reasonable doubt and theoretical possibilities, in the absence of any evidence to support them, remain theoretical and cannot constitute a reasonable doubt.

We begin all criminal trials with the presumption that the defendant is innocent and must be found “not guilty,” unless the the jury decides the prosecution has overcome the presumption of innocence by proof beyond a reasonable doubt.

The defendant has no burden to produce any evidence or do anything. He can remain silent throughout the trial and elect to testify or not testify. If he does not testify, his silence cannot be held against him and the judge will instruct the jury to ignore the defendant’s “insoluble silence” as there may be any number of reasons for it that are unrelated to the issue of guilt or innocence.

The burden to overcome the presumption of innocence is placed on the prosecution and it must prove the defendant guilty beyond a reasonable doubt. Should it fail to do so, the jury must return a verdict of “not guilty.”

Reasonable doubt is defined in the jury instructions as “a doubt for which a reason exists” and it “may arise from the evidence or lack of evidence.” That is, it must be an evidence-based doubt. Either certain evidence supports the doubt or the absence of certain evidence of guilt supports the doubt. Sometimes, it’s a combination of both that supports reasonable doubt. A reasonable doubt cannot be based on suspicion, speculation or hunches.

“A reasonable doubt is such a doubt as would exist in the mind of a reasonable person after fully and fairly considering the evidence or lack of evidence.”

Either side is entitled to claim the benefit of the evidence regardless of which side introduced it.

Put another way, during deliberations, the jury is supposed to review all of the evidence that was introduced at trial and decide whether (a) there is a doubt about the defendant’s guilt and whether (b) that doubt is supported by a reason arising from the evidence or lack of evidence. In other words, an evidence-based reason. If the answer is “yes,” then the jury must acquit. If not, then it must convict.

Unless it decides not to and that is where jury nullification comes in.

There also is a possibility that a jury verdict might be based on confusion or a mistake. However, the jury instructions were specifically designed and written to reduce the possibility of a mistake or confusion as close to zero as humanly possible. All courts use standardized sets of pattern instructions and my quoted material comes from the pattern instructions in Washington State where I practiced law for many years. I know them by heart.

I looked at the pattern instructions in Florida several months ago and they are similar, if not identical. This is not surprising as all of the state and federal courts are on the same page when it comes to defining the presumption of innocence, burden of proof and proof beyond a reasonable doubt.

No one should be surprised that judges believe jury nullification is a terrible threat to due process of law and the orderly administration of justice. They have done everything they possibly can to structure trial procedure, the introduction of evidence and the jury’s deliberative process to simplify, guide and focus jury attention on the “important” stuff.

Despite their best intentions and efforts, however, justice cannot be captured in a set of definitions, procedures and step-by-step instructions.

The whole concept of Justice is greater than the sum of its individual parts, as defined by laws, court rules and jury instructions.

The ancient Egyptians understood this principle and that is why they elevated Justice to the status of a god.

They called her Ma’at and paid homage to her in all aspects of their lives and dealings with each other.

She is the basis for what we call the Golden Rule.

When you think about it, Ma’at or the desire for justice is why we have juries decide cases, and if juries are to manifest Ma’at in their decisions, they must have the power to exercise jury nullification.

Unfortunately, jury nullification, like everything in this physical dimension of space-time, including our ideas and ourselves, comes with a shadow. That shadow manifests as something evil when an all White jury wrongfully convicts an innocent Black defendant, despite reasonable doubt. The prosecution benefits in that situation.

But a jury that acquits a sick defendant undergoing chemotherapy who is technically guilty of possessing and using marijuana for medical purposes manifests Ma’at and strikes a blow for justice. I see nothing wrong with that.

As I explained in an earlier article in this series on jury nullification, I am focusing attention on the defense effort to use racism and jury nullification to deny Justice for Trayvon. I am ringing a bell and issuing a warning to the prosecution and all who seek Justice for Trayvon in hopes of reducing the probability of that outcome to zero.

So let it be written.

So let it be done.

I hope this article clears up any remaining confusion about these vitally important principles.


Previous articles in this series:

Nitty Gritty: Three Questions for Jury to Answer in Trayvon Martin Murder Case

Jury Nullification: The Best Kept Secret in American Law

How to Nullify Jury Nullification and Obtain Justice for Trayvon Martin

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.

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