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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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.


Behold President Obama: The Cowardly Assassin-In-Chief

June 7, 2012

Since the New York Times published an article about President Obama’s assassination-by-drone program, several writers, including Glenn Greenwald (here, here, here, here, and here), Tom Engelhardt (here), and Kevin Gosztola (here, here, here, here here and here) have posted articles condemning it.

I am appalled and sickened by Obama’s definition of a “militant” as any male of military age within the strike zone, unless posthumously determined to be innocent. This is a conclusive presumption of guilt and death sentence based on apparent age, gender and presence near an intended target, or in the case of signature strikes, mere association with others who also fit the definition and profile of a militant.

There is no discernible difference between this policy and the Vietnam War policy,

Kill ’em all and let God sort them out.

The decision to target a specific individual depends on the information available about that individual which may come from a variety of sources who are reliable and unreliable. The Attorney General and the President of the United States, who is a former Constitutional Law professor, assure us that the process by which the president decides whom to kill satisfies the Due Process Clause of the Fifth Amendment. Yet, the president does nothing more than review a Power Point production with a photo of the individual under consideration with a bullet point list of alleged roles and activities in which he has engaged.

I was a criminal defense attorney for 30 years defending people charged with felonies, including death penalty offenses, and a law professor for three years teaching Criminal Law, Criminal Procedure and Causes of Wrongful Convictions. I can assure y’all that the process by which he makes these decisions is materially indistinguishable from a Star Chamber Proceeding. That is precisely what the Due Process Clause was intended and designed to prevent.

Do not ever forget that the Due Process Clause includes the Sixth Amendment right to counsel and the right to present a defense. One cannot have due process without those rights.

Even with those rights, the presumption of innocence and a jury trial, innocent people are wrongfully convicted of crimes they did not commit. According to the Cardozo Innocence Project, 292 people innocent people have been exonerated by post-conviction DNA evidence.

The seven causes of wrongful convictions are:

1. Mistaken eyewitness testimony;

2. Police Misconduct;

3. Prosecutorial Misconduct;

4. False Confessions;

5. Forensic Fraud;

6. Ineffective Assistance of Counsel; and

7. Jailhouse Informant Testimony

Note that only a small percentage of cases have biological evidence where it is possible to conduct a DNA test that will inculpate or exculpate a defendant. The seven causes of wrongful convictions can cause a wrongful conviction in any case.

The Department of Justice surveyed all public and private DNA labs in the country in the early 90s to determine how often each lab exculpated a prime suspect with a DNA test. The average rate varied little from lab to lab, whether public or private. The average rate was 22.5%

To nevertheless murder people without any meaningful process according to ridiculously overbroad definition of a militant is at best reckless homicide and at worst premeditated murder. Given its continuing use despite a high civilian casualty rate makes it premeditated murder.

To accept and allow this contrived exception to due process to stand is to tolerate an exception that swallows the rule. No American should tolerate it and no American should vote for the man who issues the order to kill. He is a murderer, a war criminal and utterly unfit to serve as President of the United States.

Anyone who votes for him will walk out of the voting booth with innocent blood on their hands.

Innocent blood that will never wash out.

I have another reason that motivated me to write this article.

President Obama obviously authorized the story in the New York Times because there is an election coming up in November and he wanted to portray himself as the candidate with the right stuff, ready, able and willing to make courageous and necessary decisions to keep all Americans safe.

But it does not take courage to order others to kill ’em all and let God sort them out, posthumously. And it does not take courage to look at a set of Power Point slides and, like a Roman emperor, issue a thumbs up or thumbs down sign.

Those are the acts of a murderous coward afraid of losing an election.

EDIT: I added links to a series of excellent articles by Kevin Gosztola that I inadvertently omitted from my original post. Thanks to Elliott at Firedoglake for the reminder.


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