Today we are going to review the plain-view rule and demonstrate that,
(1) The arresting officer in Crane-Station’s case committed perjury at her suppression hearing and again at trial;
(2) Her lawyer, Chris McNeill knew it and refused to expose his perjury at the trial.
The Plain View Rule
Pursuant to the plain-view rule, a police officer may seize any item without consent or a search warrant, if she:
(1) has a right to be where she is;
(2) sees it in plain view; and
(3) recognizes it to be evidence of a crime.
For example, if a police officer were to pull someone over and notice an ounce of cocaine in plain view on the console of the vehicle, she could seize it and arrest the driver for suspected possession of a controlled substance, provided, she had a right to be where she was.
In other words, if she had a reasonable suspicion to believe that the person she stopped was committing, had committed, or was about to commit a crime, the stop was lawful and she had a right to be where she was when she saw the suspected controlled substance in plain view. But if she did not have a reasonable suspicion, the stop would be unlawful and both her seizure of the suspected controlled substance and arrest of the driver would be unlawful.
The plain view rule is an exception to the search warrant requirement and every police officer knows it. During my 30-year-career as a criminal defense lawyer, I cannot even estimate the number of times that a client told me that an incriminating item seized by police was concealed and definitely not in plain view even though the arresting officer claimed that it was.
Police know that they are going to win swearing contests when it’s their word against the defendant’s and they are right.
The plain view rule is such a well known exception to the search warrant requirement that I cannot imagine any officer would testify under oath that he seized an item that was not in plain view and months later testify under oath in another hearing that the item was in plain view.
Yet, that is exactly what happened in Crane-Station’s case.
No competent criminal defense attorney would fail to confront a police officer who did that, yet that is exactly what her attorney, Chris McNeill, did.
His failure to do that was a violation of his duty to vigorously defend his client and he should be suspended or disbarred for doing that.
Deputy McGuire’s testimony at the preliminary hearing
At the preliminary hearing one week after the arrest, Deputy Eddie McGuire testified:
A. So you couldn’t just–the seat comes in and out, obviously, easily because it’s detached for the purposes of searching. And I just moved the seat back, and it was sitting right there.
Q. You couldn’t see it if you were standing outside the car looking in?
A. Right. I don’t believe you could.
Deputy McGuire’s testimony at the suppression hearing
Q: And what—At that point, what did you see?
A: I just seen the watch and then the small baggy sitting–it was in plain view right there in the crack where the seat belt comes up.
Q: So you could see both?
A: I could see both, yes sir.
Crane-Station here, with supporting documents. Official court reporter transcripts.
Click on the document for an enlarged view.
Preliminary hearing title page:
Preliminary hearing, page 11:
Suppression hearing title page:
Suppression Hearing page 24:
-now, the substance has moved, and it is in plain view.
Suppression hearing page 25:
If you think this is bad, tune in again tomorrow. It gets worse. Much worse.
We have been left dangling by ABC News, which reported yesterday that Christi O’Connor, an investigative journalist in Florida, contacted them and, after disclosing that she had interviewed Shellie Zimmerman
said that during their “stunning” hourlong interview, the acquitted killer’s wife said that her husband has “beaten down her self-esteem,” but she is “looking forward to getting her life back.”
Shellie Zimmerman told O’Connor that she left George after an argument and went to her father’s house on Saturday, the night before the shooting. She said she was not at home on Sunday before the shooting.
If we assume she is telling the truth about that, then we can confirm our suspicion that George lied when he told the police that he and Shellie mentored kids at their house on Sunday afternoon before he started out intending to go to Target to do their weekly shopping. The trip to Target never made any sense anyway, since he only had some change and maxed out credit cards.
Due to excellent work by Tschoupi, Marinade Dave, and LLMPapa we already knew that George lied about spotting Trayvon at Frank Taaffe’s house as he was on his way to Target because Trayvon was sheltering from the rain beneath the roof at the mailboxes and talking to Rachel Jeantel on his cell phone before George even left his house. Either the prosecution never figured this out or they decided not to exploit his lie at trial.
She refused to disclose what they argued about or whether they are still together. When asked if she was disappointed that he did not support her by accompanying her to court for her plea and sentencing, she said, “I always want my husband’s support.”
She said she believed his claim of self-defense and did not believe he profiled and murdered Trayvon because that is “not his way.”
O’Connor knows how to tease:
O’Connor, who is working on a book about the George Zimmerman trial, also hinted that there was evidence that was mishandled, saying that during the sensational trial, “there were so many untruths told.”
“What the jury never heard could have led to a different verdict,” she said.
My take: Since Shellie has not decided whether to move on and get a divorce, I think we need to take most everything she says about George and their relationship with a grain of salt. With the exception of her criticism of his photo-op visit to the KelTec factory, which even O’Mara’s office criticized, her careful choice of words appeared to me to betray a desire to avoid saying anything that might offend him or implicate him in any criminal wrongdoing, including the perjury.
I could not help but feel that I was watching an elaborately scripted performance, from her expensive makeover and bright slash of moistened magenta lipstick to her careful navigation around potentially damaging subject matter.
She remains under his toxic influence and for that reason alone, I cannot accept what she says as true absent independent verification.
The jury delivered its verdict in the George Zimmerman trial a week ago tonight. I was shocked and dismayed by the verdict. Like most of you I initially focused my wrath on stealth juror B-37 because she basically admitted on national television approximately 12 hours after the verdict was announced to having decided that “George” (referring to him as though he were a personal friend) was not guilty before she heard any evidence in the case. Indeed, her summary of the evidence matched the false narrative that Mark O’Mara had been preaching and the national media had been duly reporting for a year.
She bought O’Mara’s Trayvon-is-a-thug story despite no evidence to support it. Her race-based criticism of Rachel Jenteal’s manner of speaking and her consequent decision to ignore her testimony was a breathtaking admission of racist thinking that she quite obviously regarded as acceptable normative behavior that no one would question.
When I thought she could not possibly do more damage to herself, she added insult to injury with her giddy announcement that she had reached an agreement with a literary agent to sell her story to a publishing house before the story was even written. Never mind that she or her attorney husband must have contacted the literary agent in violation of the sequestration order, unless they contacted her in the middle of the night after the verdict was announced.
I seriously doubt that literary agents accept cold calls on late Saturday nights and early Sunday mornings from unpublished authors pitching ideas for unwritten books. Thankfully, the agent had the good sense to nix the deal once she realized she was dealing with an out of control racist wacko.
I was so disgusted and angered by B-37’s false statements under oath during voir dire, her willful violations of the sequestration order and her oath to follow the jury instructions that I urged the prosecution to prosecute her for perjury. Well, I have not seen any sign that Angela Corey intends to make an example out of her to warn future jurors not to engage in those behaviors. Seems to me that such a prosecution probably is necessary in Florida to convince jurors that an oath truly is a promise to tell the truth under penalty of perjury. In addition, B-37 truly is an unrepentant racist and egregious human being who deserves to spend time in prison for who she is as well as what she did.
While I have no doubt that B-37 contributed significantly to the miscarriage of justice, she was not alone. I also hold Angela Corey and Bernie de la Rionda responsible two disastrous tactical decisions; namely, the decision to remove race from the case and the decision to refrain from aggressively attacking Investigator Chris Serino and Officer Doris Singleton for their testimony supporting Zimmerman and vouching for his credibility. Serino, in particular, deserved to be raked over the coals for tampering with witnesses at the crime scene in an attempt to convince them that the defendant uttered the terrified death shriek.
Witness tampering in a murder case is a felony punishable by up to life in prison.
I first read about Trayvon Martin’s murder while the Sanford Police Department was still investigating the case and it seemed that Zimmerman was not going to be charged.
Their reluctance to charge appeared to me to have been imposed from the top down by State Attorney Norm Wolfinger and Chief Bill Lee due to as yet unknown reasons political reasons rather than the merits of the case.
That is corruption and that is not how our legal system is supposed to work.
As soon as I reviewed the defendant’s statements, including what he said during the NEN call, I realized that this case was all about race and could not be understood without mentioning race. If Trayvon Martin had been white, for example, the defendant would not have called the police.
I wrote an article in which I stated that anyone who believed George Zimmerman’s story was necessarily a racist. That is, one had to assume that Trayvon was a violent and crazy thug who all of a sudden for no apparent reason decided to attack and attempt to kill with his bare hands a menacing stranger who had followed him in a vehicle and then on foot after Trayvon had successfully eluded him by running away and hiding in a dark area behind a building containing townhomes. No person in their right mind would do that.
The defendant described Trayvon as a stereotypical black gangsta popularized in comics and blaxploitation films. In order to believe Zimmerman, people had to believe that the stereotypical black gangsta in films actually exists in real life.
I have represented black gang-bangers from Los Angeles who were members of the notorious Crips and Bloods. They were real flesh and blood people with more than a passing interest in survival. Yes, they had participated in gang violence and killed people but they planned what they did and they acted together. They did not utter dated movie lines or issue warnings to their intended victims before shooting them. They did not wander off unarmed and alone somewhere and suddenly decide to attack and kill a stranger with their bare hands. None of them would have believed Zimmerman’s ridiculous story. Only a white racist fixated on young black males who gets a thrill out of watching movies about mean and vicious black gangstas believing that they represent real people would even be capable of making up such a ridiculous story.
I was and continue to be astonished that anyone believed his story.
I believe that the extent to which it is believed offers a pretty accurate measuring stick indicating the prevalence of racism against blacks in our current society.
George Zimmerman did not profile Trayvon Martin as a thug casing the neighborhood for a house to burglarize in the RTL around 7 pm on a rainy Sunday night in late February because Trayvon was wearing a hoodie and walking around in the rain. He profiled him because he was a young black male and he invented a self-defense claim to justify killing him by describing Trayvon Martin as character in a movie.
Race was the proverbial elephant in the living room and the prosecution should never have agreed not to mention it. Zimmerman selected Trayvon because he was black and he hunted him down and attempted to detain him because he assumed certain things about him because he was black. He was the aggressor because he was determined to prevent him from escaping out the back entrance before the police arrived just like all of the other fucking coons and assholes who got away.
A review of all of the defendants NEN calls establishes that he obsessed about blacks. Black residents of the RTL had negative experiences with him where he accused them of wrongdoing. A visible pattern emerges of Zimmerman repeatedly assuming that blacks engaging in normal activities actually were up to no good and he called the police NEN to report them.
All of this evidence was relevant to why he selected Trayvon and why he killed him
As John Guy said, “George Zimmerman did not shoot Trayvon Martin because he had to. He shot him because he wanted to.”And he did it because Trayvon was black.
In other words, he committed a federal hate crime and I hope the Justice Department prosecutes him.
I do not know why the prosecution decided not to stress the importance of race. I imagine Angela Corey made the decision with Bernie de la Rionda’s consent. I do not believe John Guy or Richard Mantei participated in that decision. I think Corey and de la Rionda owe us an explanation.
They also inexplicably allowed Chris Serino and Doris Singleton to support George Zimmerman’s claim of self-defense. I can understand not wanting to attack a law enforcement agency in order to avoid incurring the probable wrath of other law enforcement agencies. However, once Serino and Singleton turned against the prosecution, Bernie de la Rionda should have torn Serino to shreds by bringing out that he tampered with witnesses to get them to identify George Zimmerman as the person who uttered the terrified death shriek and he set up Tracy Martin at his most vulnerable moment to deny in front of other officers, including Singleton, that he could positively identify Trayvon as the person screaming.
Serino was obviously following orders issued before he arrived at the crime scene. The fix was in and the orders were issued from the top down. He ran that investigation to produce the appearance of an investigation and he only varied from that course of action at the last minute when he realized that the department was not going to get away with not charging Zimmerman. I think he made that decision on his own hoping to save his job and hoping people would not look closely at what he did.
I think he was a trusted player in the corruption game or the Chief would not have put him in charge of the investigation.
Bernie de la Rionda also should have confronted Singleton for wearing awards on her uniform that she had not earned.
The verdict in this case might well have been different if Angela Corey and Bernie de la Rionda had not made these decisions.
The bottom line is Chris Serino and Doris Singleton are corrupt cops in a corrupt police department. They still have their jobs and that suggests that the effort to clean-up the department is only for the sake of appearances.
The prosecution’s decision to allow them to lie and gut their case to justify and conceal how they mishandled the investigation bespeaks a form of intolerable corruption in which Angela Corey and Bernie de la Rionda aided and abetted corrupt police work.
And the end result is that a racist lying psychopath is now free to kill again.
That is why I cannot and will not accept this verdict as legitimate, ever.
This is why I join with LLMPapa in urging Attorney General Eric Holder to prosecute George Zimmerman for a hate crime.
I regret to say that I do not believe Zimmerman will be charged with a hate crime. I fear the decision will be made for political reasons rather than on the merits of the case itself.
Assuming I am right that will add even more corruption to a corrupt and shameful case.
At the very least, by speaking truth to power, we draw a line in the sand and declare for all who have eyes to see that we are not fooled by the appearance of justice. We saw through to the corrupt core of this case and in this way we honor Trayvon Martin and his memory.
Exciting day yesterday with the defense decision to forego an immunity hearing. That was huge after all of the right-wing assurances that Judge Nelson was going to grant the defendant immunity from criminal prosecution and civil suits for damages.
I would be a rich man if I had a dollar for every claim that the prosecution lacked probable cause to charge the defendant with a crime and its case would never survive an immunity hearing.
One elderly Harvard law professor, who shall remain nameless out of respect for the lawyer he used to be, went so far as to accuse State’s Attorney Angela Corrie of being unethical for charging the defendant with murder 2.
Another lawyer who also shall remain nameless has been tweeting me for months telling me that this is the strongest self-defense he has ever seen and there is absolutely no way this case will survive an immunity hearing and go to trial. He expressed all sorts of creative and disparaging insults, some personal and some not, and mocked me for predicting that the defendant would be convicted.
I have been mocked, doxed, defamed, insulted, accused of being up on felony charges, faking my credentials and having sex with animals for calling it what it is; namely, an indefensible murder case. I have been doing that since I first read about it before charges were filed and we saw any discovery.
I still do not understand why what is so obvious to me is not equally obvious to everyone else, particularly to criminal defense lawyers who should know better.
Now, it should be obvious to everyone that the defense has no case. If the defendant had a legitimate claim of self-defense, the immunity hearing would have happened long ago and the defendant would be a free man.
The uncomplicated reality is that the armed defendant followed, confronted, attempted to detain, shot and killed an unarmed teenager who was walking home minding his own business while talking to his girlfriend on his cell phone.
By calling off the immunity hearing, the defense is finally admitting what should have been obvious to everyone for months.
I figured out months ago that this would happen so I was not surprised by the defense announcement yesterday.
The real eye-opener for me has been watching the media’s ongoing shameless effort since the hearing to downplay the significance of that decision while attempting to build up the significance of the prosecution’s admission that there are no hospital records that DD (AKA Witness 8) was in a hospital during Trayvon Martin’s wake or funeral.
At the press conference following the hearing, for example, one female reporter aggressively pressed the prosecutor, Bernie de la Rionda, to explain why he had not charged DD with perjury.
Now, I have heard a lot of stupid questions asked over the years, and even asked more than a few myself, but this one is quite possibly the dumbest one yet.
As I pointed out yesterday, there is no evidence that DD lied or committed perjury.
But even if she lied, and I am not conceding that she did, given the nature of the ambiguous questions she was asked, she certainly did not lie about a relevant or material matter regarding the homicide. Therefore, a perjury charge is not even a possibility.
Moreover, her alleged lie would not be admissible at the trial. The jury will not hear about it and the defense will not be permitted to mention it.
All of the media hullabaloo to create a false equivalency between DD’s alleged lie about going to a hospital instead of the wake or funeral and Shellie Zimmerman’s perjury charge for lying about her husband’s assets while under oath at a bail hearing is “baffling,” as Bernie de la Rionda snarked about the news that the defense was giving up on having an immunity hearing.
The only news organization to accurately report what happened at yesterday’s hearing was The Guardian in the UK.
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Before the beginning of today’s hearing in the Zimmerman case, the prosecution informed the defense that Dee Dee (the name given to Trayvon Martin’s girlfriend to protect her anonymity) did not go to a hospital instead of attending Trayvon’s funeral.
Judge Nelson dismissed the defense motion for Dee Dee’s medical records as moot.
The defense now claims that Dee Dee lied.
As the following partial transcript of her interview under oath by prosecutor Bernie de la Rionda conclusively demonstrates, she not lie or commit perjury.
BDLR:_ OK._ I’m not saying that they did._ I’m just making sure the records’ clear on that….Um…you obviously found out about what happened to Trayvon, right?_ And at some point you ended up knowing that he was killed, right?
Dee Dee:_ Yeah.
BDLR:_ Were you able to go to the funeral or to the wake?
Dee Dee:__I was goin’ to go, but…
BDLR:_ OK, what happened?
Dee Dee:__I didn’ feel good.
BDLR:_ OK, did you end up going to the hospital or somewhere?
Dee Dee:_ Mmmm…Yeah, I had high blood pressure.”
(Emphasis supplied)
The question is unclear because he asked if she went to a hospital or somewhere.
Therefore, her answer was not a lie and if it was not a lie, it certainly was not perjury.
Nevertheless, let us assume for the sake of argument that she did lie.
As I said in response to a comment by Unabogie,
I think you are being way too literal.
Lying is lying, by definition, but there is an unlimited number of reasons why people lie.
Intentionally lying to conceal the existence of more than a $100,000 in cash from the court during a bail hearing is, by any standard one might choose to apply, a far more serious matter than lying because you did not want to admit that you were too upset to attend a funeral.
I do not believe the prosecution is the least bit worried about this turn of events.
Proof of perjury requires proving beyond a reasonable doubt that the defendant unambiguously lied under oath about a material matter.
BDLR’s question was ambiguous and DD’s response was not about a material matter, as is the case regarding Shellie Zimmerman’s denial under oath during a bail hearing that she did not know about the money she had transferred into her account.
Therefore, even if we assume for the sake of argument that Dee Dee lied, she did not commit and will not be charged with perjury.
Anyone who says she lied and committed perjury is mistaken and anyone who claims that Dee Dee is as guilty of perjury as Shellie Zimmerman is wrong and guilty of asserting false equivalencies.
As I said in an earlier comment this morning before I saw the transcript, I do not believe this development today changes anything.
I predict DD will be one of the last witnesses called by the State after all of the evidence about the shooting and the events that led up to it have been admitted into evidence.
She will simply be confirming what the evidence has already proven. BDLR will ask her about the false statement and she will probably break down and cry as she admits that she lied about that because she was too embarrassed to admit that she was too upset to attend the funeral.
I think the jury and everyone in the courtroom, except the defendant, will understand that and forgive her for lying.
I believe Sybrina will be the last witness because she is Trayvon’s mom and the emotional impact of her testimony will be extremely powerful.
After all is said and done, I do not think anyone will remember, much less care, that DD lied. It’s just not very important.
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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.”
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.
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:.
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.
George Zimmerman is charged with second degree murder. His wife, Shellie Zimmerman was recently charged with perjury, based on her testimony at his bond hearing that she had no idea how much money he had received from donors posting money into his PayPal account at his internet website.
We know that she testified falsely because, following specific instructions that he gave her over the jailhouse phone during several recorded conversations, she transferred approximately $155,000 out of his internet PayPal account and into his personal account at a local credit union. She transferred that sum of money in amounts less than $10,000 and immediately repeated that process to transfer the money out of his account and into her personal account and his sister’s personal account at the credit union prior to the bond hearing on April 20, 2012. After he bonded out, she moved the money back into his personal account.
The apparent purpose of this scheme was to conceal from the court that $155,000 had been donated to him at his internet website. In furtherance of that scheme, Shellie Zimmerman parked the money in her personal account and his sister’s personal account, such that a casual account-balance inquiry by the court on the day of the bond hearing would show little money in the PayPal and his personal account.
He also failed to disclose the existence of and surrender a second U.S. passport issued to him. These acts appear to have been motivated by a desire to establish a secret escape route out of the United States on short notice, if things started going sideways in his case.
I recently wrote an article in which I mentioned that the prosecution might amend the information against him to add a perjury charge, but only if Shellie Zimmerman agreed to cooperate and identify him as the person who instructed her to deny knowledge of how much money had been donated to him in the PayPal account. The recorded jailhouse conversations that the prosecution has released do not contain such an instruction and for this reason I think the prosecution will have to play let’s make a deal with Shellie Zimmerman to provide the missing evidence.
Of course, I am assuming that he did instruct her to lie to the court, if asked. I am aware that he told her to tell the truth, but we know that they were advised that their conversations were being recorded and they used a code to conceal the amounts of money they were discussing. Their use of a code to hide $155,000 from the authorities coupled with her denial at the bond hearing of any knowledge about how much money had been received does not inspire confidence that he would have have answered that question truthfully, if asked. Under these circumstances, his recorded admonition to tell the truth appears to have been staged. He certainly made no effort through counsel to correct his wife’s false testimony.
The proper way for the prosecution to proceed, assuming it is interested in obtaining Shellie Zimmerman’s cooperation in prosecuting her husband for perjury, would be to contact her lawyer and ask him to submit a written summary or proffer of her testimony. If the proffer appears to be truthful and helpful to the prosecution case, it should extend a reasonable offer to settle her case conditioned on her cooperation and truthful testimony at trial.
Note that the prosecution does not have to charge him with perjury in order to introduce evidence at his trial about the perjury. Lawyers refer to this type of evidence as uncharged-misconduct evidence, which is admissible under Rule 404(b), if it shows consciousness of guilt.
Let us assume for the sake of argument that Shellie Zimmerman would testify that, for the purpose of creating an escape plan in the event that his case started going sideways, he organized and directed a scheme in which she actively participated to conceal $155,000 and his possession of a valid second passport from the Seminole County Circuit Court. That evidence would be admissible for the same reason that evidence of flight to avoid prosecution is admissible to show consciousness of guilt under Rule 404(b).
We have a bond hearing coming up on Friday, but I do not believe Zimmerman has a realistic chance to get bail. The recorded jailhouse telephone calls leave no doubt that he and his wife conspired to conceal the $155,000 that they had at their disposal when they were claiming indigency. She actually lied under oath in court and there is little doubt her husband put her up to it.
Then there is the troubling matter of the passport . . .
She cannot testify because she is charged with perjury and her lawyer will advise her not to testify because anything she might say can and most assuredly will be used against her.
He is in the same position, even though he is not charged with perjury, yet.
That’s right, folks.
Just because he has not been charged with perjury, does not mean that he won’t be charged.
So let’s take a look at the subject of accomplice liability for criminal behavior.
Section 2.06(3) of the Model Penal Code defines an accomplice:
A person is an accomplice of another person in the commission of a crime if:
(a) with the purpose of promoting or facilitating the commission of the offense, he
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it; or
(iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or
(b) his conduct is expressly declared by law to establish his complicity.
By now, I think most of us have listened to the recorded jailhouse conversations between GZ and SZ. Although I do not recall a conversation in which GZ and SZ specifically discussed a strategy to use in court to conceal the $155,000 he had received in donations to his PayPal account, there is no question that, pursuant to his instructions, she moved all of that money around in amounts less than $10,000 each time between three accounts (theirs and his sister’s) during the four-day period before the bond hearing.
When she was questioned at the bond hearing regarding whether she could estimate how much money was in the PayPal account, she responded that she had no idea. That response is the basis for the perjury charge.
The issue is whether GZ acted as her accomplice. If he did, he also committed perjury and is just as responsible as his wife under the law, even though he is not the one who lied in court.
To successfully prosecute GZ for perjury, the prosecution must be able to prove beyond a reasonable doubt that, for the purpose of concealing the $155,000 asset from the court in order to be found indigent at the bond hearing, he solicited or aided SZ to deny the existence of that asset while testifying as a witness under oath at the bond hearing.
The unusual machinations with the money by themselves demonstrate an effort to conceal the money, albeit an unsophisticated one. For example, bank to bank transfers do not meet the definition of currency. Therefore, there is no legal requirement imposed on a bank or credit union to report transactions exceeding $10,000 to the IRS. If SZ had transferred the entire $155,000 in one transaction, the credit union would not have generated a Currency Transaction Report to the IRS.
By structuring the transaction in amounts less than $10,000 however, the credit union would have generated a Suspicious Activity Report to the IRS, which likely will investigate what happened.
The final ironic twist is that the $155,000 is a non-taxable gift to GZ.
They went to all of that trouble to conceal the money and only succeeded in drawing unnecessary attention to themselves.
The question is, did they go to all that trouble to conceal the money from the IRS or did they do it to conceal the money from the court, or both?
Moving the money around coupled with the lie in court indicates both.
I think the prosecution needs SZ’s cooperation to prosecute GZ for perjury, so I believe it will be willing to play let’s make a deal with her to nail him by providing the evidence that proves the shared intent element of accomplice liability.
That brings me back to the two passports.
Were they planning a quick trip out of the country with the money, if the case started to go sideways? For example, were they planning to to wait and see how the SYG hearing went and if GZ lost, were they going split?
Then again, maybe they were just attempting to conceal the money from the lawyer, who was being an incredibly nice guy for taking the case on a pro bono basis because he liked GZ and believed they did not have any money.
Do you think SZ decided on her own to lie to the court?
Will she snitch to avoid a felony conviction and a likely prison sentence?
If she flips, do you think the deal might come together before the bond hearing?
I imagine the prosecution certainly would love to flip her before the hearing this Friday because it would guarantee that Judge Lester would deny GZ’s motion for bond and enormously complicate his already shaky defense against the murder charge.
Yesterday, the prosecution released a copy of the information charging Shellie Zimmerman with perjury, the supporting affidavit of probable cause, and six recorded jailhouse phone calls between George and Shellie Zimmerman.
I. Shellie Zimmerman’s testimony under oath by telephone at George Zimmerman’s Bail Hearing on April 20, 2012.
A. Direct examination by Mark O’Mara:
After establishing that she and her husband are indigent, he asks
Q: … other major assets that you can liquidate reasonably to assist in coming up with money for a bond?
A: None that I know of.
Q: I have discussed with you the pending motion to have your husband George Zimmerman declared indigent for cost, have I not?
A: Yes, you have.
Q: And is — are you of any financial means where you can assist in those costs?
A: Uhm, not that I am aware of.
Q: I understand that you do have other family members present with you, and I’ll ask some more questions of them, but have you had discussions with them of at least trying to pull together some funds to accomplish a bond?
A: We have discussed that.
Q: Okay
A: — trying to pull together the members of the family to scrape up anything that we can possibly can.
…
B. Cross examination by Bernardo de la Rionda
Q: And you mentioned also, in terms of the ability of your husband to make a bond amount, that you all had no money, is that correct?
A: To my knowledge, that is correct.
Q: Were you aware of the website that Mr. Zimmerman or somebody on his behalf created?
A: I’m aware of that website.
Q: How much money is in that website right now? How much money as a result of that website was —
A: Currently, I do not know.
Q: Do you have any estimate as to how much money has already been obtained or collected?
A: I do not.
II. Shellie Zimmerman’s money transfers from her account to George Zimmerman’s account from April 16 to April 19, 2012, a four-day period ending the day before the hearing.
More than $47,000 was transferred from George Zimmerman’s account into his sister’s account during the period April 16 through April 19, 2012.
III. On April 24, 2012 (four days after the hearing), Shellie Zimmerman transferred $85,500 from her account into George Zimmerman’s account. She had previously transferred that money from the Paypal account into her own account.
Total Transferred before and after the hearing: $160,458
IV. Recorded Jailhouse Conversations
The prosecution released six of the 155 recorded telephone conversations. The balance of the recorded conversations have been withheld pending the outcome of a motion by Mark O’Mara, who claims they are not relevant to the case.
The conversations contain coded references to the Paypal account as “Peter Pan” and amounts are referred in a primitive code where dollar amounts are really 10,000 times greater, as you can see below. George Zimmerman gives the orders and Shellie Zimmerman carries them out. For example, he instructs her how to access the accounts, how to make the transfers, and how much to transfer. He also tells her what bills to pay and checks back later to make sure she did it.
April 16, 2012 @ 2:26 pm
GZ: In my account do I have at least $100?
SZ: No
GZ: How close am I?
SZ: There’s like $8. $8.60
GZ: So total everything, how much are we looking at?
SZ: Uhm, like $155
The actual sum on that date was $155,000
V. Conclusion
There is no defense to the perjury charge and I am surprised that the prosecution did not also charge George Zimmerman with perjury as an aider and abettor.
Posted by masonblue 
Frederick Leatherman Law Blog 