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.


Is Mark O’Mara Cutting His Losses and Heading for an Exit?

January 31, 2013

Thursday, January 31, 2013

Best wishes to all of you who live in the South and Midwest. A hellish storm peppered with tornadoes, thunderstorms, torrential rain and golf-ball sized hail passed through this large area as a cold front with temperatures below freezing danced with a dense area of warmer air from the gulf. I live in western Kentucky where the temperature now is 32 degrees. Tuesday afternoon and evening the temperature reached 70 degrees. Yesterday featured wild windstorms, rain, flooding and decreasing temperatures. That made for an interesting motorcycle ride to the store late yesterday afternoon. Fortunately, we are OK.

Seventy degree temperatures, large menacing black clouds punctuated with lightning, tornadoes and 40 degree temperature swings do not belong in January.

Or February.

I hope everyone is safe and in good spirits this morning.

Xena gets the credit for inspiring me to write this article about the $40 K that O’Mara spent to upgrade his office.

She said:

” The $40,000 of equipment and office space should be considered an asset to O’Mara’s firm. If I had a lawyer who charged me to expand and equip his office, I would first think that he isn’t prepared to take on my case. Also, if I had a lawyer who thought it was more important to thugify the person I’m charged with murdering rather than ALREADY getting experts lined up in ballistics and forensics, I would think he is not experienced in criminal defense.

IMO, what O’Mara and West are doing is trying to divert the murder 2 case into some other type of case that does not defend GZ at all but rather, makes excuses for him.”

This is my response:

When I worked on the Green River Killer case in Seattle (we had a team of 8 lawyers, 5 investigators, 20 experts and and numerous support staff), we hired a software firm to code over a million pages of discovery stored in an airplane hanger that the prosecution converted into electronic images using scanners. They also imaged over a million exhibits.

An electronic database filled with millions of images is worthless, unless you can search the database and find the information you need. In effect, you need to develop a cover sheet for each document or exhibit in the database and enter information on that cover sheet that tags the document or exhibit with search terms that you will subsequently use to find the cover sheet and its attached document. The process of tagging each document or exhibit is called coding the discovery.

The firm that we retained, hired a team of 36 lawyers who, for one reason or another were not practicing law. Retired, semi-retired and women on maternity leave made up the team. We provided the search terms and they tagged the documents and exhibits. The job took six months to complete.

The firm provided the software program we used to search that immense database. The whole case and the program to search it was stored on a server at their office. We accessed it through a secure internet-tunnel connection. They also provided a secure email program that we used to communicate with each other regarding the case.

My primary responsibilities were DNA and forensics. I also played a major role in developing our coding system.

Although our setup was likely substantially more sophisticated than whatever setup West, O’Mara and their 6 interns are using, I think they are doing something similar to what we did, but on a much smaller scale. The process is expensive, but necessary in big paper-intensive cases.

I question whether all of that high-tech stuff is really necessary in Trayvon’s case, but I understand why they would have decided to modernize the discovery-organization process by converting everything into an electronic searchable database of images. I would too, if I had the money.

O’Mara seems to be wasting an enormous amount of time running his mouth to the media and trying his case in the court of public opinion. He appears to be obsessively preoccupied with a racist right-wing-inspired snipe hunt for evidence of non-existing bad acts committed by Trayvon and his girlfriend, Dee Dee. Seems like almost everyday there is a new nonsensical rumor coming out of tree-house gang that winds him up tight and keeps him going and going like the Eveready Bunny.

I have no doubt that the snipe hunt is a waste of time and energy because the evidence he is searching for exists only in the fevered imaginations of creepy people like the client, the client’s family and their frantic supporters. They seem not to realize that each new phantasmagorical rumor is a distraction rather than an aid. Meanwhile, O’Mara seems oblivious to how stupid he looks when each new rumor fails to pan out.

He has had more than 6 months to find out if Trayvon Martin was an aggressive martial artist who liked to beat the crap out of other people for no apparent reason while uttering outdated ghetto slang from 20-year-old movies.

I keep asking myself when will he finally tire of playing the role of a subservient dog being wagged by its tail?

I am going to repeat something that I said in a comment yesterday:

“I think O’Mara is attempting to cut his losses and get out of this thing gracefully without screaming and running as fast as he can toward the exits with his hair on fire.

At this point, I think it would make more sense to close the account to prevent more people from basically being defrauded by having their money pay for unnecessary security and create fertilizer via the defendant’s alimentary canal instead of paying for needed defense services.

Yes, settle up with AIS, close the account, enter the IFP Order, let O’Mara and West out with an admonishment to run a few laps on the beads and go forth and sin no more, and appoint new counsel at public expense. Then set a new hearing in a week or two for confirmation of new counsel.

If the defendant demands security, send him to jail. He will be safe there. That should stop his complaining.

If he objects to the GPS device on the ground that he cannot afford it, revoke his bond and take him into custody. That should stop his complaining.”


The Defendant Should Claim He is Indigent in the Trayvon Martin Murder Case

January 30, 2013

Wednesday, January 30, 2013

I write today to comment on the defense team’s financial situation in the Trayvon Martin murder case. I wrote about this recently in What Happens if the Defendant Claims Indigence and his Lawyers Ask to Withdraw?

As everyone here knows, internet donors have contributed more than $200,000 to the defendant for his defense costs via Paypal and that money has been deposited into a trust account that is being managed by an independent third-party trustee. I believe approximately $200,000 has been paid for the defendant’s and his wife’s living and security expenses.

The defendant’s two lawyers, Mark O’Mara and Don West, claim they are working pro bono. This means they are not billing for the time they spend working on the case.

This does not mean that they are not billing for their costs, however, which will include money spent for investigation, expert witnesses, court reporters and transcripts of depositions. These costs could exceed $100,000 before this case is done.

Associated Investigative Services (AIS) filed suit in December against Mark O’Mara, the defendant and his wife for breach of contract alleging that they had refused to pay AIS approximately $27,000 for security and investigation services rendered pursuant to a contract negotiated and agreed to by O’Mara on behalf of the defendant. O’Mara filed an answer to the complaint apparently admitting the contract, but claiming that he advised AIS in August that a trustee was managing the account and conserving funds to pay substantial anticipated defense expenses.

The failure to pay AIS necessarily raises concerns regarding the solvency of the defense trust account and the ability of the defense to pay the “substantial anticipated defense expenses” that O’Mara mentioned.

In addition to comments about the significance of the AIS lawsuit, many of you have asked whether the donations to the account are nontaxable gifts or taxable as income to the defendant. I wrote about this back in May or June and said I believed they were nontaxable gifts, but I am not an expert in tax law, so I could be mistaken.

Grey Winter Sky provided this link in a comment this morning to an article in Forbes Magazine last June that reached the same conclusion that I did. Since the decision is up to the IRS, subject to the outcome of any appeals, we could both end up wrong.

Jun quoted Wikipedia to support his conclusion that the donations are taxable income. He said,

“According to wikipedia, Fogenhats’ defense fund does not count as a gift, so he has to pay taxes

“In the United States, the gift tax is governed by Chapter 12, Subtitle B of the Internal Revenue Code. The tax is imposed by section 2501 of the Code.[2] For the purposes of taxable income, courts have defined a “gift” as the proceeds from a “detached and disinterested generosity.”

For the time being, I am going to stick with my initial opinion that the donations are nontaxable to the defendant.

(The donors may have to pay a tax, depending on the amount they donate, but that is a different issue and beyond the scope of this article.)

Regardless whether the defendant has to pay an income tax on the donations, and if he does it would be a substantial amount, I am concerned whether there is enough money in the account to pay “the substantial anticipated defense expenses.”

O’Mara recently estimated the balance in the account had dropped to around $15,000 and there is no way that that amount will cover “the substantial anticipated defense expenses” as well as the continued living and security expenses.

I suspect the civil suit against NBC was filed with the hope that NBC would settle the case quickly and the settlement amount would be added to the trust account to give some breathing room to the defense team. I doubt the case will settle because the claims against NBC and its reporters, even if true, do not establish that they caused any compensable harm to the defendant. He, and not the reporters, called Trayvon Martin a “fucking asshole” and a “fucking coon.” That is what I hear on the NEN recording and I am not alone. Therefore, that lawsuit is going nowhere.

I do not know if the defense continues to receive donations, but if they have slowed to a trickle as I imagine they have, then the defense is going to have to make a very important decision soon.

Hoping that future donations will be sufficient to pay “the substantial anticipated defense expenses” is not a viable and responsible strategy. It’s called gambling.

Sooner or later and preferably sooner rather than later, I believe the defense is going to have to claim indigency and seek an order permitting the defendant to proceed in forma pauperis. If granted, the court would appoint and compensate defense investigators and experts at substantially reduced rates.

No doubt such a move would cause an enormous loss of face for the defense, but that is infinitely more preferable than proceeding to trial without the assistance of defense investigators or experts.

Moreover, a conviction obtained without the assistance of defense investigators and experts might be reversed for ineffective assistance of counsel and that is a result that no one, except a convicted defendant, would desire.


The Defendant in the Trayvon Martin Murder Case Has a Constitutional Right to Defend Himself

January 25, 2013

Friday, January 25, 2013.

I believe there is a good possibility that the defendant in the Trayvon Martin murder case is extremely unhappy with his lawyers. I think he expected his case would be over by now and he would be a free man awash in millions of dollars from civil suits against his accusers and set for a life of leisure. Give what some lawyers said about his case, one can understand why he might have felt that way.

I disagreed with their opinions, but I may have been in the minority at that time — before Angela Corey charged the defendant with murder in the second degree. The subsequent release of evidence has confirmed my initial opinion and I suspect most lawyers now agree that the defendant has little chance to prevail.

Nevertheless, he had high expectations when he selected Mark O’Mara to represent him and his case has gone downhill ever since. He has only himself to blame for that. Basically, he could not keep his mouth shut and every time he opened it, he said something that hurt his case.

He appears to believe that he can outsmart anyone and lie his way out of any trouble. While that might have worked for him in the past, it’s certainly not working for him now. To put it crudely, he’s pissing with big dogs now and failing to impress.

He does not seem to be the sort of person who would admit mistakes and accept responsibility for their consequences. Instead, I suspect he blames his lawyers for his present circumstances.

As I pointed out in yesterday’s article, What Happens if the Defendant Claims Indigence and his Lawyers Ask to Withdraw? his lawyers could attempt to withdraw or he can attempt to fire them and replace them with a new team, assuming he has the money to do so. If he does not, he could plead poverty and ask the court to find him indigent and appoint new counsel.

He has a big problem, however. He might be able to change the lawyers, but he cannot change the facts.

In situations like this, I have occasionally seen a defendant insist on representing himself

In Faretta vs. California, 422 U.S. 806, 806 (1975), the SCOTUS held:

The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. This clear constitutional rule has emerged from a series of cases decided here over the last 50 years.[1] The question before us now is whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated another way, the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense. It is not an easy question, but we have concluded that a State may not constitutionally do so.

This defendant would be ill advised to represent himself because he has demonstrated that he is not very smart and he does not know the law.

Can a defendant who lacks intelligence and does not know the law and the rules of evidence “voluntarily and intelligently” elect to waive his Sixth Amendment right to counsel and represent himself?

Justice Potter Stewart, who wrote the majority opinion, answered that question:

It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” Illinois v. Allen, 397 U. S. 337, 350-351 (BRENNAN, J., concurring).[46]

Faretta, at 834.


Why Has the Defense Team Gone Silent in the Trayvon Martin Murder Case?

January 23, 2013

Wednesday, January 23, 2013

Good morning everyone. The defense team finally appears to be doing something that makes sense. They have stopped talking. Therefore, I do not have much to report.

The Orlando Sentinel has reported that the defense deposed John (W6) on December 17 and recently deposed Mary Cutcher and Selma Mora. The defense also reported on its website recently that it had received Trayvon Martin’s school records. I have not seen any reports regarding the defense reaction to those records and the depositions.

I imagine that the absence of commentary by the defense is due to the lack of anything bad to say about the prosecution’s case that has not already has been said and refuted.

I suspect the defense team is in turmoil because it’s running out of money and cannot afford to retain investigators and expert witnesses. The recent lawsuit filed by the company that provided security and investigation services against the defendant, his wife and Mark O’Mara to recover damages for breach of contract has placed every other service provider in the area on notice not to do business with O’Mara unless they get a substantial retainer up front adequate to cover the anticipated fees and costs. I doubt O’Mara can do that.

Meanwhile, there must be substantial and increasing resentment within the team regarding the amount of money spent for housing, feeding and protecting the defendant and his wife against an unlikely threat to their safety. I never have believed that a credible threat existed. Instead, I think they grossly overplayed the threat-to-safety and racial-fear cards to curry favor and sympathy with white racists while trolling for dollars on the internet.

The fogen’s incredibly bizarre and ill-advised claim that he is not a racist because he is part Hispanic makes no sense and it cost him the support of white racists who were the group most likely to support him. After all, this is the guy who used his My Space page to hate on Mexicans and consistently described himself as white before he killed Trayvon. And despite claiming otherwise, he clearly said “fucking coons” while referring to him on the recorded police NEN call. That fact alone blows up his civil suit against NBC.

The loss of financial support by white racists must have been devastating. However, one also must add the additional loss of moral support caused by the fogen’s effort to conceal his financial assets and an extra passport from the court. I imagine that a lot of people interpreted that move as an admission of guilt.

Last, but certainly not least, the fogen told the nation on the Hannity show that he did not regret killing Trayvon and would not do anything different, if he had the opportunity to do so because it was God’s Plan for Trayvon to die. Apparently convinced that he was riding a tsunami of public support because of his stellar performance on the show, he promptly overreached when he attempted to change his agreement with Barbara Walters at the last minute by refusing to be interviewed unless she persuaded her network to pay for a month lodging in a hotel for him and his wife, plus the cost of the security team to keep them safe. Apparently he did not get the memo that nobody does that to Barbara Walter. She basically told him to go pound sand.

Although the fogen finally shut-up, he had caused irreversible damage to his defense. No reason to panic, however. His formerly estranged brother, Robert Jr., stepped into the breach to save the day. Billing himself as the spokesperson for the family and voice of reason, he attempted to put out fogen’s fire by pouring gasoline on it with predictable results. They might have been manageable and excused as an understandable overreaction to a beloved brother’s plight, if only he had stayed out of the minibars in his hotel rooms. His epic drunken late night rages on twitter revealed a damned unpleasant and clueless racist with whom no sensible and empathetic person of any race anywhere on the planet would want to associate.

Given the extreme financial predicament and ongoing clown show, I suspect raised voices, finger pointing and extreme resentments are threatening to tear apart the defense team.

I do not see the fogen admitting that he did anything wrong and I suspect his lawyers have just about run out of patience, especially if they have been working pro bono as they claim.

No one had to be a psychic to see this train coming. I am actually surprised they have maintained the appearance of being on the same page and working together pursuing an agreed strategy toward a common goal.

Do not be surprised if the engine starts smoking and the wheels fall off forcing someone to announce that they have decided they need to spend more time with their family.


Zimmerman: Representing Him and the Inevitable Question: My God, What Have I Become?

October 22, 2012

Brown posted this comment Sunday night at 8:31 pm:

“Correct, but what I was trying to convey was that DeeDee might not understand that he would of been justified. Let’s just say that yes TM told DeeDee that he might have to turn around and face this dude and fight him because he felt threaten. DeeDee as a young teen who doesn’t know anything about SYG, might not understand that TM would of been in the right. If you look through her eyes, she only sees TM a kid who doesn’t fight had to fight against a grown white man. Do you see how it might put her in a position of thinking that if she were to say something like that, her thought process might be, OH boy if I say that TM would be in the wrong. She doesn’t understand that the law was on his side as soon as GZ followed him.”

Although Brown’s comment is about Dee Dee, her comment also is applicable to what clients say to their attorneys. For example, I have previously stated that the Fifth Commandment mandates that lawyers should not assume that their clients tell them the truth.

Brown’s comment pinpoints one of the reasons why clients will lie to their lawyers. For example, because the client might not realize that he has a valid self-defense claim in a murder case where there were no eyewitnesses (or he fears that no one will believe him if he tells the truth), the client might tell the lawyer that he was at a family BBQ when the death occurred. This is a false alibi defense that he also might have provided to the police.

Now let us assume that you are the lawyer and your reliable investigator, Paul Drake, has interviewed everyone who was present at the family BBQ and no one recalls your client being there until a couple of hours after the victim was killed. In other words, your client had plenty of time to kill the victim and get to the BBQ before the witnesses saw him.

You decide to confront your client. Lawyers often refer to these confrontations as a “come-to-Jesus moment.”

After telling your client that his alibi defense is not going to work, he tells you what really happened. You realize that he is describing a situation that constitutes self-defense under the SYG law in your jurisdiction.

Let us say this happens mid-trial after the prosecution rests its case and now it’s time for the defense to go forward.

Now what do you do?

In Nix v. Whiteside, 475 U.S. 157 (1986), the SCOTUS considered a similar fact situation. The Court held that the Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial.

In a unanimous opinion written by Chief Justice Berger, the SCOTUS said:

Page 475 U. S. 160

I
A

Whiteside was convicted of second-degree murder by a jury verdict which was affirmed by the Iowa courts. The killing took place on February 8, 1977, in Cedar Rapids, Iowa. Whiteside and two others went to one Calvin Love’s apartment late that night, seeking marihuana. Love was in bed when Whiteside and his companions arrived; an argument between Whiteside and Love over the marihuana ensued. At one point, Love directed his girlfriend to get his “piece,” and at another point got up, then returned to his bed. According to Whiteside’s testimony, Love then started to reach under his pillow and moved toward Whiteside. Whiteside stabbed Love in the chest, inflicting a fatal wound.

Whiteside was charged with murder, and when counsel was appointed, he objected to the lawyer initially appointed, claiming that he felt uncomfortable with a lawyer who had formerly been a prosecutor. Gary L. Robinson was then appointed, and immediately began an investigation. Whiteside gave him a statement that he had stabbed Love as the latter “was pulling a pistol from underneath the pillow on the bed.” Upon questioning by Robinson, however, Whiteside indicated that he had not actually seen a gun, but that he was convinced that Love had a gun. No pistol was found on the premises; shortly after the police search following the stabbing, which had revealed no weapon, the victim’s family had removed all of the victim’s possessions from the apartment. Robinson interviewed Whiteside’s companions who were present during the stabbing, and none had seen a gun during the incident. Robinson advised Whiteside that the existence of a gun was not necessary to establish the claim of self-defense, and that only a reasonable belief that the victim had a gun nearby was necessary, even though no gun was actually present.
Until shortly before trial, Whiteside consistently stated to Robinson that he had not actually seen a gun, but that he was

Page 475 U. S. 161

convinced that Love had a gun in his hand. About a week before trial, during preparation for direct examination, Whiteside for the first time told Robinson and his associate Donna Paulsen that he had seen something “metallic” in Love’s hand. When asked about this, Whiteside responded:

“[I]n Howard Cook’s case, there was a gun. If I don’t say I saw a gun, I’m dead.”

Robinson told Whiteside that such testimony would be perjury, and repeated that it was not necessary to prove that a gun was available, but only that Whiteside reasonably believed that he was in danger. On Whiteside’s insisting that he would testify that he saw “something metallic,” Robinson told him, according to Robinson’s testimony:

“[W]e could not allow him to [testify falsely], because that would be perjury, and, as officers of the court, we would be suborning perjury if we allowed him to do it; . . . I advised him that, if he did do that, it would be my duty to advise the Court of what he was doing, and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony.”
App. to Pet. for Cert. A-85. Robinson also indicated he would seek to withdraw from the representation if Whiteside insisted on committing perjury. [Footnote 2]

Whiteside testified in his own defense at trial, and stated that he “knew” that Love had a gun, and that he believed Love was reaching for a gun, and he had acted swiftly in self-defense. On cross-examination, he admitted that he had not

Page 475 U. S. 162

actually seen a gun in Love’s hand. Robinson presented evidence that Love had been seen with a sawed-off shotgun on other occasions, that the police search of the apartment may have been careless, and that the victim’s family had removed everything from the apartment shortly after the crime. Robinson presented this evidence to show a basis for Whiteside’s asserted fear that Love had a gun.

The jury returned a verdict of second-degree murder, and Whiteside moved for a new trial, claiming that he had been deprived of a fair trial by Robinson’s admonitions not to state that he saw a gun or “something metallic.” The trial court held a hearing, heard testimony by Whiteside and Robinson, and denied the motion. The trial court made specific findings that the facts were as related by Robinson.
The Supreme Court of Iowa affirmed respondent’s conviction. State v. Whiteside, 272 N.W.2d 468 (1978). That court held that the right to have counsel present all appropriate defenses does not extend to using perjury, and that an attorney’s duty to a client does not extend to assisting a client in committing perjury. Relying on DR 7-102(A)(4) of the Iowa Code of Professional Responsibility for Lawyers, which expressly prohibits an attorney from using perjured testimony, and Iowa Code § 721.2 (now Iowa Code § 720.3 (1985)), which criminalizes subornation of perjury, the Iowa court concluded that not only were Robinson’s actions permissible, but were required. The court commended “both Mr. Robinson and Ms. Paulsen for the high ethical manner in which this matter was handled.”

B

Whiteside then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa. In that petition, Whiteside alleged that he had been denied effective assistance of counsel and of his right to present a defense by Robinson’s refusal to allow him to testify as he had proposed. The District Court denied the writ. Accepting the state trial court’s factual finding that

Page 475 U. S. 163

Whiteside’s intended testimony would have been perjurious, it concluded that there could be no grounds for habeas relief, since there is no constitutional right to present a perjured defense.
The United States Court of Appeals for the Eighth Circuit reversed and directed that the writ of habeas corpus be granted. Whiteside v. Scurr, 744 F.2d 1323 (1984). The Court of Appeals accepted the findings of the trial judge, affirmed by the Iowa Supreme Court, that trial counsel believed with good cause that Whiteside would testify falsely, and acknowledged that, under Harris v. New York, 401 U. S. 222 (1971), a criminal defendant’s privilege to testify in his own behalf does not include a right to commit perjury. Nevertheless, the court reasoned that an intent to commit perjury, communicated to counsel, does not alter a defendant’s right to effective assistance of counsel, and that Robinson’s admonition to Whiteside that he would inform the court of Whiteside’s perjury constituted a threat to violate the attorney’s duty to preserve client confidences. [Footnote 3] According to the Court of Appeals, this threatened violation of client confidences breached the standards of effective representation set down in Strickland v. Washington, 466 U. S. 668 (1984). The court also concluded that Strickland’s prejudice requirement was satisfied by an implication of prejudice from the conflict between Robinson’s duty of loyalty to his client and his ethical duties. A petition for rehearing en banc was denied, with Judges Gibson, Ross, Fagg, and Bowman dissenting. Whiteside v. Scurr, 750 F.2d 713 (1984). We granted certiorari, 471 U.S. 1014 (1985), and we reverse.

I believe The SCOTUS decision in Nix v. Whiteside can be distinguished from the facts in my hypothetical because of the lack of certainty that the client intended to commit perjury.

This distinction is important as it helps to define the boundary between a lawyer’s duty to provide effective assistance of counsel to his client and his ethical and legal obligation not to assist the client to commit perjury to beat the charge.

Criminal defense attorneys routinely navigate close, but not too close, to the land of perjury.

Many times they do not want to know the truth and you should take that into account when you hear Mark O’Mara or any other criminal defense attorney speak about a case.

This is why I say that a criminal defense attorney should never judge his client. That responsibility is assigned to judges and juries.

But sometimes, you cannot help it and therein lies the rub as well as the doubt and the inevitable question:.

My God, what have I become?


I Worry About Mark O’Mara and George Zimmerman

July 20, 2012

O’Mara -“The client always calls the shots,” his lawyer, Mark O’Mara said Thursday.

One of the most contentious issues in the field of criminal defense is how to handle the difficult client.

Many lawyers are like Mark O’Mara and devote their efforts to assisting their clients to make informed decisions. I have seen some lawyers, for example, ask a jury to sentence their client to death because that is the outcome the client desired.

I have seen too many people change their minds after being sentenced to death, so I decided long ago to refuse to facilitate a client’s desire to commit suicide.

For some reason, I have had more than my share of difficult clients where we disagreed on strategy and desired outcomes. I refused to allow the client to drive the bus over a cliff and, if it came down to irreconcilable differences, I moved to withdraw.

GZ is the quintessential difficult client. He is paranoid, secretive, fearful, angry, stubborn, doesn’t trust anyone, controlling, believes he’s smarter than anyone else, manipulative, and probably delusional. It’s absolutely clear that he does not feel any emotional distress or regret for having killed TM.

His claim that TM died as part of “God’s Plan” exhibits a frightening dissociation from reality and a willingness to kill without any sense of responsibility or regret, if he deems it necessary to do so. In other words, if he should find himself in another situation where he believes he is cornered and needs to kill someone to save face or save his ass, I believe he’s likely to do so and excuse what he did as just carrying out God’s will.

I think he is a danger to himself or others and he belongs in a secure mental health facility or a jail. He needs a thorough mental health evaluation.

I fear that Mark O’Mara is a potential victim and I am concerned about his safety. He’s clearly lost control of GZ despite his protestations to the contrary. GZ clearly sees O’Mara in the way and O’Mara has to be very careful how he handles the “uncharted waters” (his words) in which he finds himself.

If he pushes too hard in an effort to regain control, assuming he ever had control, things could get ugly.

I think he needs to withdraw because there is basically nothing he can do at this point without potentially placing himself in danger. GZ is not going to listen to him anyway, so he might as well get out of the case. He needs to recognize that his dreams of fame and fortune have turned to dust. There is not going to be any money for him and he needs to get out while the gettin’ is good.

Now, back to the question of who should call the shots.

I firmly believe the lawyer has to call the shots with input from the client, obviously. According to the rules of professional conduct, the client only gets to decide whether to plead guilty or not guilty and whether to testify or not testify. The rules provide that the lawyer has the responsibility and the duty to make the other decisions using independent professional judgment in the best interests of the client.

In my professional opinion, O’Mara is abdicating that responsibility when he says the “client calls the shots.” Having said that, I do not believe that he would have succeeded in getting control of GZ, if he had attempted to do so. He certainly cannot do it now.

Regardless whether a person believes GZ is guilty of murder in the second degree or not guilty by reason of self-defense, I believe everyone needs to realize that GZ is a volcano waiting to explode, despite no trial date having been set. The pressure, anxiety and fear will only increase geometrically as the case gets closer to trial.

Ask yourself if you would show up without your lawyer dressed in a tee-shirt and jeans to meet Barbara Walters and her film crew to do an interview for her show, The View, and at the last possible moment try to change the deal to get ABC to pay for a month’s lodging in a hotel with a security detail.

Think about that. Who does something like that?

Consider also that he reactivated his website (therealgeorgezimmerman.com) Thursday after his disastrous interview with softball pitcher Sean Hannity on Wednesday night , after basically complaining that the website that O’Mara established for him was,

(1) failing to correct distortions and falsehoods published by the media (even though his games to hide the internet donations and his contradictory and false statements have been the source of most of what has been reported);

(2) failing to get his message across; and

(3) failing to raise enough money to fund his lifestyle, security detail and pay his lawyer’s fees.

This is crazy behavior that does not bode well for the future.

I believe he is going to crack before too long as he realizes that his support is evaporating and he sees the bills rising and the walls closing in. I believe he may take his own life, commit suicide by cop, or he may take the life of another who pushes his button.


Zimmerman: A Spectacular Fail!

July 19, 2012

Watt4Bob at Firedoglake posted a comment to my article, Should Mark O’Mara Withdraw as Counsel for George Zimmerman? He asked the following question, which probably is on most everyone’s mind this morning after the Sean Hannity interview of George Zimmerman last night.

I want to ask both Hannity and O’Mara what the hell good they think they did for that pathetic man, but I realize neither of them gives a damn and GZ is oblivious.

I can answer that question with three words:

EXPLOITATION. FOR. MONEY.

I am furious.

I cannot imagine myself, or any criminal defense attorney whom I respect, ever, under any set of circumstances, short of cardiac arrest, loss of consciousness or death, sitting passively beside my client as he denies any regret for killing an unarmed teenager, or anyone else for that matter, because it was “God’s plan” for him to die.

And to follow that statement with an “apology” to the kid’s parents in which he says he’s sorry they had to bury their child because he knows what it would be like to lose one of his as yet unborn children is . . . well,

What is it?

And all of this was delivered in a soft monotonous voice without any detectable trace of emotion as though he were describing doing the laundry.

Are there words that capture the depravity and emptiness of that shell of a human being?

If any of you were concerned whether the prosecution could prove beyond a reasonable doubt that George Zimmerman killed Trayvon Martin while acting with a depraved mind,, you need not worry any longer.

The prosecution must be drinkin’ the bubbly and dancin’ in the street.

I assure y’all, no client of mine would ever have said anything like that on national television with me present because I would have done something, anything, even ripped off my clothes and mooned Amerika in all my naked glory, just to shut him up.

And this appears to have been scripted.

Jesus Christ on a bicycle.

Can there be any doubt who is calling the shots for the defense?

George Zimmerman is representing himself with Mark O’Mara dancing to his tune while playing the role of his attorney.

If anyone still believes George Zimmerman is not a devious and manipulative person, please listen to this audio recording of a jailhouse telephone call when he called right-wing Pastor Terry Jones of let’s-all-of-us-sinners-party-on-the-lawn-burnin’-Korans fame to pray with him for the healing of America and ask him to cancel a pro-Zimmerman demonstration to calm people down.

Hell, listen to it anyway.

Just for the halibut.

(h/t to Crazy1946 @ my website for spotting this recorded conversation and posting a comment about it)


Should Mark O’Mara Withdraw as Counsel for George Zimmerman?

July 18, 2012

I believe Mark O’Mara should withdraw as counsel for George Zimmerman because he is not acting in his client’s best interests. Instead, he appears to be acting in what he perceives to be his own best interests by constantly talking to the press, making himself available for interviews by mainstream media TV, and making questionable pitches for dollars on his website to fund his effort to represent his client.

There also is the disturbing matter of whether he knew his client had raised a substantial sum of money from contributions by donors at his client’s original funding website (therealgeorgezimmerman.com).

On April 12th, Mark O’Mara filed Defendant’s Motion for Reasonable Bail asserting that his client was indigent.

On April 14th, during a recorded jailhouse conversation (Call 30) with someone identified as Scott.

George Zimmerman said.

GZ: Mark O’Mara is going to try and get me declared indigent. I told him that I didn’t think that was a possibility because you know there was the one possible transfer I tried to make and it got stopped, you know the $37. [37 is code for $37,000]

He said ‘well that doesn’t matter. Right now you are not working, not providing an income for your family, you are probably never going to be employable for the rest of your life. So basically they will declare you indigent.

Male: ah ah

GZ: So he knows about that. um But he …

Male: Does he know about the volume

GZ: No

Male: Ok

GZ: And uh …

Male: I’d like to keep that with us

GZ: Ok I think so too.

At the bond hearing on April 20th, Mark O’Mara did not disclose the $37,000. Instead, he represented to the court that his client had no money.

As we subsequently discovered, during the period between the phone call and the hearing, Shellie Zimmerman transferred $155,000 from the internet account into George Zimmerman’s personal account at a credit union and then she transferred that money into her personal account and his sister’s account, all pursuant to George Zimmerman’s explicit instructions. Therefore, on the date of the bail hearing, there was very little money in the internet account and George Zimmerman’s personal account. The money was transferred back into his personal account after he got out of jail. He then proceeded to spend $36,000 paying off some bills and purchasing two $300 smart phones with a two-year prepaid Verizon account and a two year internet access account, among other things.

Shellie Zimmerman testified by telephone at the bail hearing claiming she and her husband were indigent. She denied any knowledge of how much money, if any, had been donated to the internet account.

She has since been charged with perjury.

Judge Lester revoked George Zimmerman’s bond for misrepresenting his assets at the bond hearing.

In my opinion, any reasonably experienced and competent lawyer at this point would have backed off on the full court press to promote a false image of his client as a young and somewhat naive person “who was fearful and experienced a moment of weakness and who may also have acted out of a sense of betrayal by the system.” See Judge Lester’s Order Setting Bail below.

Nevertheless, at the second bail hearing on June 29th, Mark O’Mara attempted to excuse his client’s misconduct by saying he was exactly that.

Judge Lester did not buy it. Although he set bail in the amount of $1,000,000 based on Florida law that left him no other alternative (thereby brushing aside O’Mara’s presentation of character evidence as irrelevant) in his order setting bail, at page 2, he said:

Under any definition, the Defendant has flaunted the system. Counsel has attempted to portray the Defendant as being a confused young man who was fearful and experienced a moment of weakness and who may also have acted out of a sense of betrayal by the system. Based on all of the evidence presented, this Court finds the opposite. The Defendant has tried to manipulate the system when he has been presented the opportunity to do so. He is an adult by every legal definition; Trayvon Martin is the only male whose youth is relevant to this case. The Defendant has taken courses in criminal justice with the intention of becoming a police officer, an attorney, a judge, or a magistrate like his father. He has been arrested before, having entered and successfully completed a pretrial intervention program. He has also obtained an injunction and had an injunction obtained against him. The injunction against him has obviously been dissolved at some point for him to have validly obtained a permit to carry the firearm used to shoot Trayvon Martin. He also had the wherewithal to set up a website to collect donations to help defray the costs of his defense. Thus, before this tragic incident, the defendant had a very sophisticated knowledge of the criminal justice system over and above that of the average, law abiding citizen.

One would think, he would have breathed a sigh of relief that his client bailed out and reconsidered the wisdom of placing his client’s character in evidence before the court of public opinion.

Nope. He doubled down and while doing so, he forgot to appeal and seek a stay from Judge Lester’s order directing the prosecution to release incredibly damaging evidence to the public; specifically, W9’s claim that George Zimmerman (her cousin) had sexually molested her multiple times over a period of 10 years when she was 6-16 years old. Zimmerman was two-years older.

That evidence exploded on the public two days ago and now he’s going to appear with George Zimmerman on the Sean Hannity Show to discuss the case and no doubt trash W9.

Meanwhile, he made the following pitch on his website:

For those who have given in the past, for those who have thought about giving, for those who feel Mr. Zimmerman was justified in his actions, for those who feel they would do the same if they were in Mr. Zimmerman’s shoes, for those that think Mr. Zimmerman has been treated unfairly by the media, for those who feel Mr. Zimmerman has been falsely accused as a racist, for those who feel this case is an affront to their constitutional rights — now is the time to show your support.

He also filed Defendant’s Verified Motion to Disqualify Trial Judge alleging that Zimmerman fears getting a fair SYG hearing before Judge Lester because the judge said bad things about him and is obviously prejudiced against him.

As the prosecution noted at page 8 in its Response to the Defendant’s Verified Motion to Disqualify Trial Judge,

On June 1st, he told Anderson Cooper of CNN News:

There is no question that they knew about the money, actually in a previous correspondence to the judge, we had acknowledged that. The question of whether or not they had presented it properly, I think it was somewhat misleading to the court. I’ve gone over that with George.

On June 3rd, the Orlando Sentinel reported:

O’Mara acknowledged the problem his client faces in securing a new bond. “There is a credibility question that needs to be explained away,” he said. O’Mara added that “Zimmerman’s credibility has been tarnished and he will have to rehabilitate it.”

On June 4th, he posted the following statement on his website (gzlegalcase.com):

While Mr. Zimmerman acknowledges that he allowed his financial situation to be misstated in court . . . The audio recordings of Mr. Zimmerman’s phone conversations while in jail make it clear that Mr. Zimmerman knew that a significant sum had been raised by his original funding website.”

On June 29th, ABC Action News reported:

This prosecutor has made a very specific showing that his case is strong,” O’Mara said. “It was important for us to counter that.”

Since he makes no valid legal argument in support of the relief he requests, I expect Judge Lester will deny the motion.

Filing a frivolous motion did not help his client.

The Rules of Professional Conduct mandate that a lawyer shall represent the best interests of the client to the best of his ability.

I see a lawyer who has placed self-interest in surfing media attention to fame and fortune above the best interests of his client. He acts like a moth driven to the flame and I see nothing good coming out of this for himself and his client. I therefore think he needs to withdraw.

George Zimmerman appears to be the quintessential difficult client who probably wants and may even be directing O’Mara to do these things. But public revulsion and disgust are not in his best interest.

He needs to shut up and so does his lawyer.


Zimmerman: I Love the Smell of Napalm in the Morning

July 16, 2012

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

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

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

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

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

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

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

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

Question: Is the evidence admissible at trial?

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

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

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

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

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

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

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

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

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

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

Stay tuned.

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

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

Question: Are there any other foreseeable consequences?

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

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

Will Fox News reach a new low in entertainment reportage?

Question: What’s up with his lawyers?

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

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

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

Why posture like that when she is unlikely to testify?

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

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

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


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