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’s Statements will be Admissible by the Prosecution in the Trayvon Martin Murder Case

January 26, 2013

Saturday, January 26, 2013

I predict the defendant’s statements to police will be admissible against him at his immunity hearing and his trial.

The legal test will be whether he knowingly, intelligently and voluntarily waived his rights to remain silent and submit to police interrogation without counsel present. The SCOTUS established this test in Miranda vs. Arizona, 384 U.S. 436 (1966).

The defendant gave multiple statements to police investigators. Each statement was videotaped.

Before answering any questions, he reviewed, initialed and signed the standard form acknowledging that he had been advised of his rights to remain silent and to have an attorney present while being questioned and his decision to waive those rights and submit to questioning.

There is no evidence on the videotapes that the police confronted, threatened or intimidated him in any way and they permitted him to go home after interviewing him the first night. Moreover, there is no evidence that they used any trick, lie or ruse to get him to talk. Therefore, his statements will be admissible pursuant to Miranda.

Some of you have commented that his attorneys might move to suppress his statements on the grounds that he suffered from post traumatic stress disorder (PTSD) and he had been diagnosed with attention deficit hyperactivity disorder (ADHD) for which he was taking Adderall.

These mental disorders normally do not prevent a person from knowing that police are about to question them regarding their possible guilt in committing a crime and they have a right to refuse to answer any questions or insist on having a lawyer present during questioning. So long as they understand what they are being told, they can agree to waive those rights and submit to questioning. Absent persuasive evidence to the contrary from a duly qualified mental health expert, PTSD and ADHD would not prevent a person from knowingly, intelligently and voluntarily waiving those rights.

The defense has not filed a motion to suppress the defendant’s statements and I am not expecting such a motion.

Since the prosecution will want to use the defendant’s statements to prove his guilt, you might see BDLR file a motion asking the Court to rule that he can do that. To win the motion, he will have to convince Judge Nelson that the defendant’s statements were knowingly, intelligently and voluntarily made after advice and waiver of Miranda rights. Lawyers refer to this procedure as laying a proper foundation for the admissibility of the statements.

For the reasons I have stated, I expect Judge Nelson will grant the prosecution motion. The defense either will have no objection or its objection will be overruled (i.e., denied).

Keep in mind that the prosecution can introduce any of the defendant’s statements as admissions by a party opponent, but the hearsay rule prevents the defense from introducing any of them.


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.


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?


Zimmerman: The Defense Subpoenas for School Records and Social Media Accounts Were Proper

October 20, 2012

Diary of a Successful Loser posted the following comment last night after I went to bed. It raises several important issues, so I have seized it as an opportunity for yet another teaching moment.

” At times I get the feelings that O’Mara really does not believe in GZ’s innocence. He mentioned being accused of digging up stuff on Trayvon and countered that with GZ’s Constitutional rights to have a lawyer try his best. I have yet to hear O’Mara say that he really and honestly believes in GZ.”

You will rarely hear a lawyer say that on behalf of any client because lawyers are not supposed to judge their clients or vouch for them. They have a duty to represent each client zealously to the best of their ability, whether the client is innocent or guilty.

Absence of vouching for the innocence of a client should never be interpreted as evidence that the lawyer believes his client is guilty.

If I were representing Zimmerman, I would have asked for the same stuff he’s asking for.

Look at it this way.

Assume GZ were convicted of murder 2 and O’Mara had not presented any character evidence that TM was kown to be an MMA-style fighter and aggressive bully who picked fights. As I have stated elsewhere, such character evidence would have been admissible regarding who was the aggressor.

Let’s put aside and forget for the moment that introducing evidence of that pertinent character trait would open the door to allow the State to present evidence that Zimmerman was an aggressive bully.

Further assume that O’Mara had not subpoenaed TM’s school records and they did contain evidence that TM was an MMA-style fighter and aggressive bully who picked fights. I do not believe this is true, but let’s assume that it is for purposes of this teaching moment.

Zimmerman would have a great ineffective assistance of counsel argument against O’Mara that could result in the case being reversed and remanded for a new trial.

The Sixth Amendment established the right to effective assistance of counsel. The SCOTUS defined what constitutes effective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984).

The Strickland test is a two-part test that basically establishes a minimal standard of performance that a lawyer must provide to comply with the Effective-Assistance-of-Counsel Clause of the Sixth Amendment. If a lawyer’s level of performance (1) falls below this minimal standard and (2) the lawyer’s error is so deficient as to undermine confidence in the outcome, a reviewing court must undo the damage. If the outcome was a guilty verdict by a jury, the case must be reversed and remanded for a new trial.

Wikipedia has a good summary:

The Supreme Court began its decision with the idea that the Sixth Amendment right to counsel “exists, and is needed, in order to protect the fundamental right to a fair trial.” A fair trial is one in which “evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Criminal defendants require counsel’s skill and knowledge in order to be able to successfully rebuff the State’s attempt to imprison or execute them. Accordingly, the Court has ruled that counsel must be appointed for criminal defendants if they cannot afford to hire their own counsel. But the fact that “a person who happens to be a lawyer is present at trial alongside the accused… is not enough to satisfy the constitutional command.” Counsel must play the role in the adversarial system that allows the system to produce just results. Hence, the right to counsel is the right to the effective assistance of counsel.

A claim that counsel was ineffective, then, has two components. First, the defendant must show that counsel’s performance was “deficient,” such that counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Second, this deficient performance must be so serious as to deprive the defendant of a fair trial. Without these two showings, “it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”

In order to show that counsel’s performance was “deficient,” the defendant must show that it fell below an “objective standard of reasonableness.” The legal profession is capable of maintaining standards that justify the law’s presumption that counsel ordinarily serves his function in the adversary system. This includes such basic duties as assisting the defendant and showing him undivided loyalty by representing him unburdened by any conflict of interest. Counsel should advocate the defendant’s case, consult with the defendant on the important decisions and keep him informed of important developments in the course of the prosecution. But these basic duties do not serve as a “checklist” for counsel, for “no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Counsel must have “wide latitude” to make “reasonable tactical decisions,” lest the requirements for constitutionally effective assistance distract counsel from “the overriding mission of vigorous advocacy of the defendant’s cause.” Judges who evaluate ineffective assistance claims should, in turn, be highly deferential to counsel’s decisions and avoid scrutinizing them in hindsight. Harsh scrutiny would encourage the proliferation of ineffective assistance claims and “dampen the ardor and impair the independence of defense counsel.”

A criminal defense attorney has a duty to investigate a case. This duty usually includes hiring an investigator to locate and interview witnesses. In a case like this, it also includes hiring consulting experts in police procedures and forensics to review what the police did and to evaluate the procedures used and the results obtained by crime lab personnel testing evidence in the case.

More pertinent to our discussion, the duty to investigate includes subpoenaing records that may contain relevant information or that might reasonably be expected to lead to the discovery of relevant information, unless those records have been provided in discovery.

O’Mara’s decision to subpoena school records and social media accounts (Facebook and Twitter) is something I would have done and I expect every competent criminal defense lawyer also would have done.

Whether there is anything relevant and admissible in any of those records remains to be seen.

My concern today is that O’Mara might “inadvertently” publish the records on his website, whether they contain relevant information or not. The records are protected by privacy statutes because he is a juvenile, they contain private information about him and they are supposed to remain private, even after they are turned over to O’Mara. He certainly knows he should not publish them on his website or release them to the media, and he would have some serious ‘splainin’ to do, if he does. The my-secretary-did-it card is practically unavailable because the State has already played it.

Recall that the State published Zimmerman’s woeful junior college records in violation of his right to privacy and quickly acknowledged and apologized for the “clerical mistake.”

The apology did not unring the bell, of course, and now the world knows Zimmerman was a failing student.

Inexplicably adding to Zimmerman’s woes, O’Mara failed to make a sufficiently specific and timely objection to the State’s release of W9’s statements claiming that Zimmerman had molested her for a 10-year period beginning when she was 6-years-old and he was 8-years-old.

In my professional opinion, O’Mara’s failure, although obviously unintentional, was a clear violation of the objective standard of care that a lawyer should provide to his client under Strickland v. Washington. Whether it turns out to be material to the outcome of this case remains to be seen.

If Zimmerman is convicted by a jury and a reviewing court decides that O’Mara’s error materially affected the outcome of the trial, the conviction would be reversed and the case remanded for a new trial.

Since I identified and commented on his miscue at the time, I think it’s only fair that I approve of his use of subpoenas, as it is something I would have done.

To be clear, I do not believe he will find the information that he is looking for. Nevertheless, I believe he is entitled to look for it.

I hope this clarifies the legal issues regarding the subpoenas.


Zimmerman: Understanding the Miranda Rule

September 2, 2012

To eliminate widespread abusive and coercive practices by police to secure confessions from suspects during custodial interrogations, the United States Supreme Court announced a new rule in the famous case called Miranda v. Arizona, 384 U.S. 436 (1966).

Under the Miranda rule, a suspect’s statement during a custodial interrogation is not admissible unless the prosecution presents evidence that the statement was voluntarily given after the suspect was advised of his rights and agreed to waive them.

Y’all should know them by heart, but here they are in case you may have forgotten them:

You have the right to remain silent;

Anything you say can be used against you in a court of law;

You have the right to an attorney;

If you cannot afford an attorney, the Court will appoint one to represent you at public expense.

The Right to Remain Silent

The right to remain silent comes from the Fifth Amendment, which states:

No person shall be compelled to testify against himself.

Notice that the so-called Compulsion Clause prohibits the use of any threats, physical acts, or punishment to force a suspect to give a statement. The right to remain silent may be asserted at any time, including at trial. Defendants who elect not to testify at trial, are entitled to have the trial court instruct the jury that it cannot consider silence for any purpose, including guilt. This instruction recognizes that silence is insoluble because there may be any number of reasons why a defendant may decide not to testify.

The Right to Counsel

The Sixth Amendment is the source for the right to counsel. For example, in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held via the Due Process Clause of the Fourteenth Amendment that the states must appoint and pay for counsel representing indigent defendants.

Waiver

A “waiver” in the legal system is a formal way of stating that a person has acknowledged that he has an important right or privilege and has decided to give it up. Waivers of constitutional rights are invalid absent a showing that the decision was knowingly, intelligently, and voluntarily made.

The Exclusionary Rule

The Exclusionary Rule is the remedy for a violation of the Miranda Rule. Pursuant to this rule, statements obtained by police from suspects during custodial interrogations are not admissible during the prosecution’s case in chief at trial, unless the police have complied with the Miranda Rule.

However, if the defendant testifies during the defense case and his testimony conflicts with his custodial statement, the statement may be admitted into evidence so long as it was voluntarily given.

Zimmerman Case

One of the biggest problems facing the defense is the number of lengthy and detailed statements that George Zimmerman gave to the police. The statements are internally inconsistent as well as inconsistent with each other. Some of the statements appear to contain provable lies. Unless the defense can persuade the Court to exclude his statements, George Zimmerman may not have much of a chance to win his case.

To evaluate the likelihood that his statements will be admitted, follow this guideline with respect to each statement:

Was the statement obtained during a custodial interrogation?

There are two parts to this question. The first part distinguishes custodial statements from non-custodial statements. Custodial statements require Miranda warnings because they are inherently coercive. Non-custodial statements are not as coercive because the suspect is free to terminate the contact with the police at any time and walk away. The courts apply an objective test to determine whether a suspect is in custody. That is, given the totality of the circumstances, would a reasonable person in the same situation have believed he was free to leave?

If the answer is “yes,” the police are not required to Mirandize a suspect and the statement is admissible, so long as it was voluntarily given.

If the answer is “yes,” the statement is not admissible unless the police advised him of his rights, he acknowledged that he was advised, and he agreed to waive those rights knowingly, intelligently, and voluntarily.

I believe the prosecution may argue that Zimmerman was free to leave and therefore, under the totality of the circumstances, all of the statements were non-custodial, voluntary, and admissible.

Prosecutors generally advise police to delay placing a suspect under arrest so that they can question him in the field under non-coercive circumstances without having to first Mirandize him.

Obviously, the more coercive the circumstances, the more likely the Court will require advice and waiver of Miranda rights before admitting a statement into evidence.

Mirandizing suspects is the safest way to go and I believe the police probably complied with the requirements of Miranda, even though he may been free to leave. We will have to wait and see if the defense moves to exclude his statements.

I do not see any evidence that Zimmerman’s statements were involuntary. He appears to have been eager to talk to the police. For example, he called the prosecutor’s office and tried to speak to Angela Corey about his case, but she was not available. His call was transferred to Bernie de la Rionda, who insisted on talking only to his lawyer. Zimmerman said he did not have a lawyer at that time, but de la Rionda still refused to talk to him and terminated the call.

Bernie de la Rionda’s insistence on talking only to Zimmerman’s lawyer was in compliance with ethical rules.


Did George Zimmerman Have a Reasonable Suspicion that Trayvon Martin Intended to Commit a Crime?

August 25, 2012

I believe it may be useful to compare what a police officer may have been able to do to Trayvon Martin, if he had seen him walking in the rain.

A police officer could not have stopped Trayvon Martin and temporarily detained him to determine his identity and investigate what he was doing in the neighborhood, unless he had a reasonable suspicion that Trayvon had committed, was committing, or was about to commit a crime.

Whenever you see the word “reasonable,” as part of a legal test or rule, you should immediately realize that the test or rule is objective, not subjective.

Let us assume for the sake of argument that George Zimmerman actually believed Trayvon Martin was, as he put it, “up to no good.” In other words, he had a subjective hunch that Trayvon was casing the neighborhood looking for a house to burglarize or someone’s property to steal.

A subjective hunch is not a reasonable suspicion unless there were sufficient articulable facts and circumstances such that a reasonable person in George Zimmerman’s situation would have suspected Trayvon intended to burglarize someone’s home or steal someone’s property.

We know the answer to that question is “No,” because Chris Serino told him that. Based on what George Zimmerman claimed to have seen, he did not have a reasonable basis to stop and detain Trayvon Martin.

Regardless what the Zimmerman supporters say, this is an undisputed fact and conclusion of law.

Serino was right. Walking through the neighborhood looking around at houses and hanging out in the covered mailbox area while it was raining does not suggest criminal activity of any kind is about to happen.

Serino also told him that his hoodie notwithstanding, Martin was not dressed in gang attire because he was wearing tan chinos and white tennis shoes.

Therefore, a police officer would have violated Trayvon’s Fourth Amendment right to privacy, if he had stopped and detained him for a few minutes to check his identification and ask him what he was doing in the neighborhood.

Police also have a community caretaker responsibility, however, that does not necessarily involve preventing criminal activity. If an officer saw a front door open, for example, she could walk up to the open door and look inside or call out to see if anyone is home.

If she saw Trayvon walking in the rain looking around at houses, she could approach him and ask him if he needed any assistance. That type of contact does not constitute a stop because the person contacted is free to leave at any time. The protections of the Fourth Amendment do not apply to those types of contacts.

George Zimmerman passed up two opportunities to do the same thing, but declined to do so.

By the way, if you should ever find yourself in an ambiguous situation after being contacted by a police officer, just ask the officer politely if you are free to go.

If the answer is “No,” the protections of the Fourth Amendment apply to you. You can be temporarily detained long enough for the police officer to determine your identity and confirm or reject his suspicion. If the officer determines that there is probable cause to arrest, he may arrest you and take you to jail. If not, he must release you.

At any time, you may assert your 4th Amendment right to refuse to consent to a search, your 5th Amendment right to refuse to answer questions, and your 6th Amendment right to counsel. If you decide to assert any or all of these rights, do so politely.

Be advised that operating a motor vehicle is a privilege and not a right. If you are pulled over for suspicion of DUI and asked to take a breathalyzer, your refusal will result in a suspension of your license, regardless if you are subsequently acquitted of DUI. You can always insist on a blood test.

Probable cause is reasonable grounds to believe that a person has committed a crime. As such, it is more than reasonable grounds to suspect that a person has committed a crime.

I believe it’s now clear that George Zimmerman assumed Trayvon Martin was a criminal looking for a house to burglarize or some property to steal and he hunted him down with the intent of detaining him in order to prevent him from getting away. He was so determined to do that that he intentionally and willfully disregarded the Neighborhood Watch rules and the NEN dispatcher’s admonition.

Acting as a private citizen, he had no authority or right to touch Trayvon, let alone restrain him.

Now that we have reviewed and understand the SYG law, we realize that Trayvon had the right to stand his ground and use reasonably necessary force to defend himself.

I am not satisfied that he used any force to defend himself, but if he did, he had a right to do so.

Since George Zimmerman was the aggressor, he had no right to use any force, let alone deadly force to defend himself.

Assuming for the sake of argument that Trayvon Martin used excessive and deadly force to defend against George Zimmerman’s initial use of force, George Zimmerman would have been required to attempt to withdraw from the confrontation and offer to quit fighting before he could lawfully use deadly force to defend himself.

George Zimmerman never claimed that he did and there is no evidence that he did.

Therefore, George Zimmerman did not act in self-defense. He committed an imminently dangerous act with a depraved mind indifferent to human life and that is the definition of murder in the second degree.


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