Abolish grand juries and independently prosecute by information the cops who kill

December 5, 2014

Friday, December 5, 2014

Good afternoon:

Time to get rid of the grand jury (See ham sandwich, indictment of)* and demand governors appoint independent prosecutors to prosecute killer cops.

I despise secrecy, especially secret meetings attended by people who discuss and decide matters that affect others without their knowledge or consent. Democracy requires transparency. It cannot function when decisions are made in secret and carried out without the knowledge and consent of the governed. Similarly, our courts must be open to the public so that the people that it serves can observe and decide whether justice is being dispensed. Indeed, the Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment guarantees an accused a right to a public trial and the First Amendment protects the public’s right to know what its government and its courts are doing.

A star chamber proceeding has no place in a democratic society; yet, that is what a grand jury does. It meets in secret and decides whether to charge people with crimes. The identities of its members are kept secret as are the identities of the witnesses and their testimony before it.

Why do we have this deplorable practice?

We need to return to not so merry old England during the 11th century when the king was all powerful and able to stifle political dissent and steal valuable lands that he wanted by accusing, imprisoning, prosecuting, convicting and killing people for crimes they had not committed. To prevent him from abusing the criminal law to satisfy his lust for wealth and power, the aristocracy of the day took away his power to decide whom to charge. Hence, the grand jury was created to make that decision and the king had to convince its members that there was a legitimate reason to accuse someone of a crime.

We live in far different times and while there remains a legitimate concern that the criminal laws will be abused to punish and silence those who dissent (fill in the names of any whistleblowers here), we do have a process to review criminal charges for legitimacy. It’s called a probable cause hearing.

What is probable cause, you ask?

The Supreme Court of the United States (SCOTUS) defined probable cause in Brinegar v. United States, 338 U.S. 160 (1949) as follows:

where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.

The sole function of a grand jury today is to decide whether there is probable cause to believe that a person committed the crime charged. A prosecutor typically decides whom to charge and what crime to charge. Armed with a proposed indictment and accompanied by the police detective who ran the investigation or the officer who arrested the suspect or target of the grand jury ‘investigation,’ the prosecutor puts the detective or cop on the stand and has him or her summarize the evidence against the target. Then the grand jury votes on whether there is probable cause. Depending on the size of the grand jury, at least 9 out of 12 or 12 out of 23 ‘yes’ votes are needed to return an indictment or true bill. Otherwise, it’s a no bill.

Many states have abolished the grand jury because it’s a pain-in-the-you-know-what to deal with. Instead, a prosecutor will review a case-investigation file for probable cause, and if it’s there, file an information charging the defendant with a crime or crimes. To satisfy the probable-cause requirement they have the detective or cop who arrested the defendant sign a statement under oath setting forth the evidence in the case. The affidavit is attached to the information and submitted to a judge to review for probable cause. If the judge finds probable cause, he or she signs an order to that effect. Then the information, affidavit for probable cause and order finding probable cause are filed.

Washington State where I practiced law for 30 years uses this process instead of the cumbersome grand jury.

Florida, Missouri and New York use both procedures. In Florida, for example, Angela Corey charged George Zimmerman by information with murder 2 and Michael Dunn with murder 1 by grand jury indictment (Florida requires murder 1 prosecutions to be by grand jury indictment).

Why did the prosecutors in Missouri and New York choose the cumbersome grand jury process instead of charging by information?

The simple answer in two words is ‘political cover.’

State prosecutors, who are elected by the voters, work closely with the police. They see themselves as partners with police in fighting crime. The last thing they want to do is to prosecute a police officer for killing someone. Not only is that like prosecuting a member of your own family for murder, it’s a great way to destroy a working relationship with police officers and lose the next election. In other words, they have a conflict of interest and it’s way too easy to succumb to temptation and use the secret grand jury to avoid charging and prosecuting a police officer.

State prosecutors who work with grand juries know how to get them to do their bidding. There are all sorts of ways. For example, in the Michael Brown shooting case, prosecutor Kathy Alizadeh went so far as to gently lead Officer Darren Wilson through 4 hours of testimony without ever challenging him on anything he said and she provided the grand jury with a statute favorable to him that the SCOTUS declared unconstitutional in 1985. The only witnesses challenged were the eyewitnesses who said Michael Brown had his hands up. As I warned long ago before the grand jury began hearing witnesses, the process was rigged and the outcome never in doubt.

The same is true in the Eric Garner case, except we are not going to see the prosecutor’s fingerprints at the scene of the crime because he is not going to release any evidence, except maybe the cop’s testimony, because he is going to play I’ve got a secret.

We are seeing an epidemic of cops killing unarmed civilians. There was another one in Phoenix last night.

White, brown or black, male or female, adult or child, we the people are being terrorized by militarized cops and state prosecutors are using secret grand juries to protect the killer cops and escape the political consequences for their wrongdoing.

We need to eliminate their political cover by getting rid of the grand jury and then we need to demand governors to appoint independent prosecutors to prosecute these cases.

Failure to do so will eventually lead to the people taking the law into their own hands and that is a result we must avoid.

*Charlie Pierce at Esquire Magazine came up with this expression.


Darren Wilson’s radio calls do not support a claim of self-defense

November 17, 2014

Monday, November 17, 2014

Good morning:

Officer Darren Wilson of the Ferguson Police Department shot and killed an unarmed Michael Brown on August 9, 2014 sometime between 12:02 pm, when he told dispatch, “Put me on Canfield with two. [an apparent reference to stopping Michael Brown and Dorian Johnson] And send me another car,” and 12:03 pm when someone posted a tweet about the shooting.

His radio calls do not support his claim of self-defense.

According to a timeline in the St.Louis Dispatch,

11:53 am

Police dispatcher reports a “stealing in progress” at the Ferguson Market.

11:53:19 am

Dispatcher reports that the suspect stole a box of Swisher cigars and describes him as a black male wearing a white T-shirt running toward QuikTrip.

11:57 pm

The dispatcher reports that the suspect is wearing a red Cardinals hat, a white T-shirt, yellow socks and khaki shorts, and is accompanied by another man.

12:00 pm

Wilson reports that he’s back in service from the sick-baby call. He then asks the officers searching for the thieves – units 25 and 22 – if they need him.

12:00:07 pm

An unidentified officer broadcasts that the suspects had disappeared.

12:02 pm

Wilson says, “21. Put me on Canfield with two. And send me another car.”

Sources have told the Post-Dispatch that Wilson has told authorities that before the radio call he had stopped to tell Brown and his friend, Dorian Johnson, 22, to quit walking down the middle of the street. They kept walking, and he then realized that Brown matched the description of the suspect in the stealing call.

12:02:41 pm

Unit 25 reports that he is about to arrive at Wilson’s location, saying he is “going out on Canfield” and accompanied by the sound of his racing engine.

12:02:48 pm

Unit 22 reports that he has arrived at the scene.

12:23 pm

Someone tweets about the shooting.

My Observations

1) The 911 caller reported a theft of a box of Swisher cigars, which is a misdemeanor shoplift, not a robbery.

2) Wilson’s statement to the dispatcher, “Put me on Canfield with two. And send me another car,” does not indicate why he stopped the two people. For example, he may have intended to issue them citations for jaywalking and he may have called for backup as a precaution because the two boys had disobeyed him. His post-shooting explanation (i.e., that he realized Brown matched the description of the suspect in the stealing call after they ignored his order to get out of the middle of the street) may or may not be true. I suspect he lied about that because he did not fill out an offense report explaining why he decided to stop them and the police chief publicly stated that Wilson did not know they were the two suspects.

3) Wilson shot and killed Brown sometime between 12:02 pm, when he asked for backup, and 12:03 pm, when someone tweeted about the shooting. I suspect it happened before 12:02:41, when the officer in vehicle 25 reported that he was going on Canfield and 12:02:48, when the officer in vehicle 22 reported that he had arrived at the scene and was out of his vehicle. Apparently, neither officer witnessed the shooting, so I am inferring that it happened before they arrived.

4) I am not convinced that Wilson suffered any injuries during his encounter with Brown. If so, they are not apparent in the videos from the police station.

5) I believe the most likely explanation for what happened is Wilson backed-up, stopped and pushed his door open intending to get out and confront the two boys. The door hit both boys and Brown pushed it back hitting Wilson in the head as he was attempting to get out. Wilson lost his temper and reached through the open window with his left hand grabbing and holding on to Brown’s arm as he drew his gun with his right hand and pointed it toward Brown. Brown attempted to prevent Wilson from shooting him but was unsuccessful as one of the two shots injured his right hand. This explanation is consistent with Dorian Johnson’s description of what happened and also consistent with the autopsy report and the presence of gunshot residue on Brown’s right hand.

6) Brown broke free from Wilson’s grip and ran away to avoid being shot a second time. Dorian Johnson also ran.

7) Wilson gave chase squeezing off shots at Brown.

8) Brown realized he was not going to get away, so he stopped, turned around and was raising his hands as he dropped to his knees to surrender.

9) Wilson kept shooting and finished him off as Brown was leaning forward looking at the ground as he dropped to his knees. This version is consistent with Brown’s injuries.

10) Brown’s body was about 100 feet from Wilson’s vehicle, which makes it extremely unlikely that he bull-rushed Wilson.

11) Finally, I do not believe a person who literally ran for his life after having been shot, would suddenly stop fleeing, turn around and bull-rush the shooter.

As I have said many times, there is probable cause to believe that Wilson intentionally shot and killed Brown in the heat of anger.

Wilson should be indicted and tried for murder.

Brown’s family and the people who live in Ferguson deserve no less.


Kansas City Highway Shootings Probable Cause Statement Analysis

April 21, 2014

Monday, April 21, 2014

Good morning:

I write today regarding the affidavit for probable cause in the Kansas City highway-shootings case. I conclude the affidavit contains sufficient information to establish probable cause to believe that Mohammed Pedro Whittaker shot at 12 victims in their vehicles on highways in the Kansas City area between March 18th and April 6th of 2014.

The affidavit by Detective Dawn McCamish of the Kansas City, Missouri Police Department identifies 12 victims in 11 vehicles who were shot at while exiting highways in the Kansas City area.

Three of the victims were wounded (victims 1, 9 and 11 in the affidavit). Victims 1 and 9 were shot in their right arms with the shots passing through the front seat passenger side windows. Victim 11 was shot in the lower left leg with the shot passing through the door on the driver’s side. All three are males.

Five of the 12 victims are females. Victims 3 and 4 are a mother and daughter who were in the same vehicle with the mother driving and the daughter sitting in the back seat behind her.

Bullets were recovered from each of the 11 vehicles. According to ballistic analysis, all of the bullets were fired from the same weapon, a .380 caliber handgun.

Only two of the victims saw the shooter. Victim 3, the mother driving with her daughter in the back seat, saw a black male wearing a hoodie pull beside her on the left before the shots were fired. She was unable to provide a description of the vehicle that he was driving.

Another victim, who is not identified by number, told the police that he saw a dark metallic green sedan pull alongside him driven by a male wearing a black hoodie, ski mask and dark sunglasses. The window on the passenger side of green sedan was down and front door on the driver’s side of the victim’s vehicle took the shot.

The affidavit also references tips received from three callers an April 8th and 9th.

The first tip on April 8th reported a dark green sedan, possibly a Dodge Neon with Illinois plates followed the caller.

The second tip on April 9th reported seeing a mixed race male in his early 20s wearing a black hoodie and ski mask while driving a green Dodge Neon with Illinois plates.

A third tip received on April 9th reported an encounter that she had with a person driving a light green or turquoise vehicle with damage to the rear bumper. She stopped behind the vehicle at a stop sign. The driver stared at her. He was wearing a gray hoodie and a cloth mask that covered his face.

She followed him after he pulled away from the stop sign and stayed behind him even though he hit the brakes and slowed down as if to allow her to pass him. She remained behind him until she reached the I-71 on ramp. Then she took the on ramp to get away from him.

She reported the vehicle license as Illinois plate G86 5203.

This encounter occurred on March 20th at 1900 hours when the temperature was 70 degrees. She said all of the windows in his vehicle were down.

Police ran the plate. It came back to a white Buick registered to the suspect’s father, who resides at 9624 Beacon.

Police ran an incident search on the white Buick and obtained three hits.

On August 31st, 2013 it was reported parked in front of 9624 Beacon.

On August 30th, it was parked in front of 9622 Beacon.

On August 22nd, it was parked in front of 9622 Beacon with a dark green vehicle parked behind it.

Police ran an incident search on 9622 Beacon and obtained a hit dated October 11th, 2013. On that date, the residents of the house directly behind 9622 Beacon reported that someone fired a shot into their house. The bullet was a .380 caliber.

On April 9th a witness contacted police and reported finding a plastic Walmart bag containing spent .380 caliber casings and empty boxes of .380 caliber ammunition. He found the bag beside a highway while he was searching for his cell phone that he lost.

Police identified the suspect’s fingerprint on the bag.

Police located the suspect’s green Dodge Neon on April 10th and began following him.

On April 11th they saw him contact a male and attempt to purchase a .380 caliber handgun with a laser sight. The male refused to sell the gun because the suspect said he did not have ID. The male provided police with the suspect’s cell phone number. He was able to provide the number because the suspect had texted him to express interest in purchasing the gun, which the male had advertised for sale.

Police were able to determine where the suspect was living from the cellular service provider’s GPS locator.

On April 12th, the police followed him to a parking lot where he parked and left the vehicle. While he was gone, they walked around the vehicle and noted the damaged rear fender reported by the caller who had followed him and obtained his license plate number. From outside the vehicle, they saw a hoodie and a mask in the pocket of the passenger seat.

While following him on April 13th, they saw him remove plastic covering his windows and subsequently engage in erratic driving speeding up and slowing down in his vehicle. At one point, he swerved suddenly and almost struck a Honda that he appeared to be following.

Police obtained search warrants for his residence where they found masks and a .380 caliber handgun that fired the bullets that were recovered from the 11 vehicles.

The suspect’s father told police that he gave the license plate to the suspect.

When the police interrogated the suspect, he waived Miranda and agreed to answer their questions. When they accused him of the shootings, he denied being the shooter at the Jewish Community Center. They told him that they were not talking about those shootings. They said they were talking about the highway shootings.

He denied responsibility for those shootings and then claimed to be one of the victims.

I note parenthetically that the first victim was driving a green Dodge Neon. Probably only the victim and the shooter knew that, so it seems like he was claiming to be the first victim which reminds me of the stealing-the-victim’s-scream strategy used by Zimmerman and Pistorius.

The test for probable cause is whether reasonable grounds exist to believe that the suspect shot at the 11 vehicles.

Based on the information contained in Detective McCamish’s affidavit, I believe there is probable cause to conclude that Mohammed Pablo Whittaker is the person who shot at the 12 victims in the 11 vehicles.

Probable cause is not proof beyond a reasonable doubt. Only two of the victims saw the shooter and his car. All of the cases are tied together by the ballistics evidence and the shooter’s modus operandi to draw next to a potential victim who is committed to an exit lane or on ramp and shooting at the victim who cannot then follow the shooter, if the victim survives the shooting.

Modus operandi evidence is admissible regarding uncharged misconduct pursuant to Rule 404(b) and here there are several instances of his erratic driving in an apparent attempt to line up a potential victim. One incident involved the woman who reported his license plate to police. Another, with police watching, involved the Honda that he nearly ran into.

Appears to be little doubt that he intended to shoot people, not just cars, since he wounded three victims and subsequently attempted to improve his aim by purchasing a .380 caliber handgun with a laser.

Not an airtight case, but close.

Safe to say,

Bring lawyers, guns and money cuz I’m in a helluva jam.

If you appreciate what we do and have not already made a donation this month, please do so today.

Fred


Craig Wood preliminary hearing April 2nd at 9 am

March 15, 2014

Saturday, March 15, 2014.

Good evening:

The court scheduled a preliminary hearing for Craig Michael Wood on Wednesday, April 2nd at 9 am.

Although a judge has already reviewed the lead detective’s affidavit summarizing the evidence against Mr. Wood at his initial appearance after his arrest and determined that probable cause (i.e., reasonable grounds) exists to believe that he committed the crimes charged in the complaint, Mr. Wood has a right to revisit the probable cause issue at a preliminary hearing.

A preliminary hearing is not a trial. The hearing will be before a judge without a jury and the rules of evidence will be relaxed.

The issue the judge must decide is the same. That is whether probable cause exists to believe Mr. Wood committed the crimes charged in the complaint. The difference is that the decision must be based on the evidence presented at the hearing by the prosecution, as opposed to the initial appearance when no witnesses testified and the judge based his decision on reviewing the affidavit for probable cause.

Since hearsay is admissible at a preliminary hearing, prosecutors generally call only a few witnesses. In most cases they only call the lead detective who wrote the affidavit for probable cause. He or she is placed under oath and answers the prosecutor’s questions.

The defense gets to cross examine the witness after the prosecution finishes the direct exam.

Defense counsel know they are unlikely to win a probable cause argument, so they use cross examination to discover potential vulnerabilities in the prosecution’s case and to lock the witness down on any facts that may be favorable to the client’s case.

Therefore, you will often hear the prosecutor object to the relevance of any question asked by defense counsel that is not probative of probable cause.

I have already written about a potential vulnerability in the prosecution’s case regarding the first entry into Mr. Wood’s house. He was not present and they apparently did not have a search warrant. They may have lacked probable cause to believe she was in the house and their safety sweep of the premises may have exceeded the limited scope of a safety check.

Questions regarding that subject matter would likely trigger a relevancy objection, since the sole issue before the judge will be whether probable cause supports the charges, not whether police unlawfully entered the house.

Do not be surprised, however, if the grand jury returns an indictment against Mr. Wood before the preliminary hearing. Should that happen, the grand jury would have already determined that probable cause supports the charges in the indictment and there would no longer be any need for a preliminary hearing.

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Donations are lagging. We work hard to keep you informed by filling in the blanks between the lines. After 30 years in the trenches, I am familiar with all of the rules and strategies prosecutors and defense counsel utilize. Experience counts and most of my predictions have been accurate.

Adjusting and fine tuning to dial in the white fear and racist corruption frequencies in the Florida courts took some doing, but I am on track now.

If you appreciate what we do, please make a donation.

We cannot pay our bills without your support.

Fred


Theodore Wafer ordered to stand trial for killing Renisha McBride

December 19, 2013

Thursday, December 19, 2013

Good evening:

MSNBC is reporting today that a Michigan judge ordered Theodore Wafer, 54, to stand trial for murder in the second degree and manslaughter for shooting Renisha McBride, 19, to death in the face with a shotgun on November 2nd.

He is white and she was black.

Judge David Turfe said Thursday that based on the evidence presented, Wafer made a poor decision in shooting McBride, and he failed to pursue other “reasonable opportunities to defend himself,” including calling the police for help.

“He chose to shoot rather than not answer the door,” the judge said.

McBride had been drinking heavily earlier in the evening and crashed her vehicle into a parked car approximately a half-mile from Wafer’s house three hours before she knocked on Wafer’s door.

The New York Daily News is reporting:

A witness said McBride was bleeding and holding her head, but that she walked away from the scene before an ambulance arrived. It’s still unclear, at least publicly, what she did between the time of the car wreck and her arrival on Wafer’s porch.

An autopsy found McBride had a blood-alcohol level of about 0.22, more than twice the legal limit for driving. She also had been smoking marijuana.
Her best friend, Amber Jenkins, 18, said they were drinking vodka and playing cards seven to eight hours before the shooting was reported to 911.

Wafer opened the inner door and shot her through the screen door in the face from a distance of about two feet.

Assistant Wayne County Medical Examiner Kilak Kesha testified that her injuries were so severe that he “couldn’t even reconstruct the brain.”

The result of this preliminary hearing is not surprising because she was unarmed and Wafer had admitted to police that he shot her after he opened the door in response to her knocking on it.

The purpose of the hearing was for the judge to determine whether probable cause existed to believe Wafer committed the crimes charged. There was zero chance that the judge would have dismissed the charges on that set of facts.

Defense counsel did what defense counsel all over the country do at a preliminary hearing. They used it to obtain discovery about the prosecution’s case and cross examine their witnesses under oath locking them into their stories.

Defendant did not testify and defense counsel did not put on any witnesses at the preliminary hearing. This is standard operating procedure, so no surprises there. Nothing good can come from locking your client into his story and opening him up to cross examination by a great white shark in a dress before you know if the prosecution has the ace of trumps.

That would be malpractice.

Wafer and his defense team appear to have a choice-of-defense dilemma. He initially told police that he accidentally fired his shotgun. However, his lawyers argued that the judge should dismiss the charges because the evidence introduced at the hearing was consistent with self-defense.

I did not get that impression and neither did the judge. Unless a person is predisposed to believe that an unarmed black female teenager knocking on their door at 4:30 am is a threat and should be shot in the face, and I am talking about white racists, I do not believe the evidence supports a claim of self-defense.

The prosecutor didn’t mess around; She went for the jugular.

Wayne County assistant prosecutor Danielle Hagaman-Clark said it’s “ridiculous” to believe that Wafer was deeply afraid but still decided to open the door and fire instead of first calling the police.

“He shoved that shotgun in her face and pulled the trigger,” Hagaman-Clark said.

And that was the end of that.

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This is our 811th post, and 4th today, in a little over two years. If everyone who has not contributed a donation, were to donate $5, we could end this fund drive today.

Fred


Practicum: Did the police have probable cause to arrest George Zimmerman the night of the shooting

March 25, 2013

Monday, March 25, 2013

Write down or memorize these rules:

1. A police officer must have probable cause (i.e., reasonable grounds) to believe that a suspect committed a specific crime before he arrests the suspect. If he arrests a suspect without probable cause, the arrest is unlawful.

2. Whether probable cause exists depends on the totality of the circumstances.

3. A person is under arrest if a reasonable person in the same situation would not believe they were free to terminate the contact with the officer and leave the area.

4. Pursuant to the exclusionary rule, all evidence seized from a suspect after an unlawful arrest cannot be used against the suspect.

5. A person subjected to an unlawful arrest has a cause of action against the arresting officer for all damages caused by the unlawful arrest.

Now, let’s take a look at the Trayvon Martin case and decide whether the police had probable cause to believe that the defendant unlawfully killed Trayvon (i.e., that he did not kill him in self-defense).

They certainly knew he killed him because he admitted that he did.

What else did they know?

The had the recorded NEN call, the recorded 911 calls, various witness interviews at the scene of the shooting, the EMT’s report regarding the defendant’s physical condition and injuries, the photographs of the defendant taken at the station house, and the defendant’s statements at the station house.

Do not consider the results of the autopsy, forensic analysis at the crime lab, and other evidence obtained after the first night.

Pretend you are the judge.

Is that information sufficient to constitute reasonable grounds to believe the defendant did not kill Trayvon Martin in self-defense?

Next question:

Notwithstanding that he was permitted to leave the station house after submitting to an interrogation, was the defendant under arrest at any point that evening?

With the exception that I have given you the rules that must be applied and y’all can collaborate with each other, these two questions are similar to and probably were asked on more than one Criminal Procedure final exam in law school.

Who will be the first to provide an answer?


Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

March 8, 2013

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

In Dennis v. State, 51 So.3d 456, 462 (2010), the Florida Supreme Court stated,

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

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