Zimmerman: Is Mark O’Mara Clueless as well as Ineffective?

July 24, 2012

JD, who comments regularly at my site and who provided the invaluable overlay of a Google Earth Satellite photo onto the SPD Total Station diagram of the objects found at the crime scene, asked the following question:

His lawyer [Mark O’Mara] seems to want to make a point that GZ was still 17 at the time the cousin [W9] claims he was 18 and she 16. If none of this ever happened, what’s the point in making that claim?

Statutory rape statutes establish the age of consent, which is usually 16, and provide exceptions based on the age of the other person. In effect, these exceptions establish a sliding scale of criminal liability. For example, no crime would be committed if a 16-year-old boy had consensual sex with a 15-year-old girl.

I am not familiar with the Florida statutes, but O’Mara appears to have been pointing out that, even if W9’s allegation were true, it would not constitute a crime because she and GZ were too close in age.

That ignores her claim that she never consented to sexual contact.

Statutory rape statutes eliminate consent as a defense. Since she did not consent, the statutory rape statutes do not apply.

Assuming her allegations are true, we’re looking at rape and indecent liberties type offenses.

Rape requires proof of penetration “however slight,” and includes digital penetration.

Rape is generally classified into three degrees:

R1: forcible penetration while armed with a weapon;

R2: forcible penetration; and

R3: non-consensual penetration.

A victim is not required to physically resist in order to establish that she did not consent to sexual penetration. In other words, “no” means “no.”

I say “she” because W9 is a female and this article is about her allegations. It’s important to remember that males also can be victims of sex offenses. Jerry Sandusky’s sexual predation is a current example that is fresh in everyone’s mind.

Most date rapes fall into the R3 category where the perpetrator does not use force and the victim does not consent or physically resist.

During my career as a felony criminal defense lawyer, I did not see many cases that started out charged as R3. Instead, cases that started out as R2s and occasionally R1s were bargained down to R3s, due to proof difficulties.

I concede that my legal experience falls into the dreaded category of anecdotal information and I do not know if there are any studies that confirm it. Suffice to say that the R3 category has been a source of continuing debate in our society.

Indecent liberties offenses consist of fondling and may be forcible or non-consensual.

States also have statutes that exempt children from criminal prosecution below a certain age. I am not sure what it is in Florida, probably 10 or 12.

States also have statutes of limitation that prohibit prosecution after a certain time period passes. The states vary quite a bit in the area of sex crimes involving children because children are so reluctant to accuse their abusers until later in life, if at all.

I do not know whether GZ has any possible exposure to criminal charges based on W9’s allegations, given the passage of time.

I did not get the impression that W9 was seeking to have GZ charged with a criminal offense. I think she felt guilty for not reporting the abuse to the police because if she had, that might have changed his life in a way that would not have led to him killing TM.

She wanted the police to know that he is a frightening and intimidating person who lies and uses charm to manipulate and control others. She did not want him to lie, charm and talk his way out of responsibility for killing TM as he had gotten away with sexually abusing her for so many years.

That was the message she wanted to convey.

When O’Mara said GZ was still 17 at the time W9 claimed he was 18 and she 16, he was saying that even if GZ did what she claimed he had done to her, he did not commit a crime.

As with other aspects of this case, O’Mara seems utterly clueless.

Because she was not seeking to have him charged and I do not believe the prosecution is even considering charging him for what he did to her, I am not going to review Florida’s sex crime statutes to determine whether GZ has any potential exposure to criminal liability for rape, statutory rape and indecent liberties.

Such an inquiry and a discussion about it would be irrelevant and distracting. Readers who want to know can always look up the answer by reviewing the Florida Statutes.

Keep in mind that regardless whether the alleged misconduct constitutes a chargeable offense, it will not be admissible during the State’s case in chief pursuant to Rule 404(b). The only way the jury would get to hear about it would be if the defense opened the door by introducing evidence that GZ is a law abiding, peaceful and non-violent person who would not have killed TM, unless it was in self-defense.

Presumably, the defense would never risk opening that door.

As I demonstrated previously, but for O’Mara’s failure to let Judge Lester know that W9 had provided a tape recorded statement to law enforcement accusing GZ of digitally penetrating her vagina and fondling her multiple times during a 10-year period that began when he was 8 and she was 6, the public would not know about W9’s accusation.

He did not do his client any good by failing to keep her allegation from being released to the public.

In my title to this article, I asked if O’Mara was clueless as well as ineffective.

I think we know the answer.


Zimmerman: Oh the Irony of it All!

July 21, 2012

Scales of Justice
image by DonkeyHotey on creative commons, flickr

W9 is George Zimmerman’s cousin. On Monday, July 16th at 11 am, the prosecution released her tape recorded statements to the media in which she accused George Zimmerman and his family of being racially prejudiced against African Americans and George Zimmerman specifically of sexually molesting her multiple times during a 10-year period that began when she was 6 years old and he was 8. She is now 26 and he is 28. The two families have lived in the same community and socialized together often during that period.

She said the molestation incidents involved fondling and digital penetration of her vagina. She said she finally ended the sexual abuse by getting away from him and running out of the house. She told her parents and they told his parents. Due to pressure from her parents and because she feared Zimmerman would hurt her, she decided not to report the sexual abuse to the police. After that Zimmerman was no longer invited to family social events.

She first contacted the police anonymously two days after Zimmerman shot and killed Trayvon Martin, She told them he was racially prejudiced and capable of hurting people.

They interviewed her a second time after he was in jail charged with second degree murder. When they asked her why she had waited so long to report the sexual abuse, she said it was the first time she felt safe.

A virtual tsunami of outrage and disgust swept the country and the world after the media reported W9’s accusations and various news organizations posted her two tape recorded statements on their websites.

Anticipating the public furor that would follow the release of the tape recorded statements, Zimmerman’s defense attorney, Mark O’Mara, posted the following statement on his website:

The defense moved to block the public release of Witness #9’s statement in a motion filed on June 18, 2012 contending “The content of this statement is not relevant to the issues of this case, and it would not be admissible in the State’s case in chief.” The motion further contends that this irrelevant statement should be withheld from public dissemination [pursuant to Florida’s Sunshine Law] because of the substantial risk that public disclosure will lead to widespread hostile publicity which would substantially impair the Defendant’s fair trial rights, and would pose a serious threat to the administration of justice.

That request was denied on July 13, 2012 by Judge Lester. Because there is a [defense] Motion for Disqualification [of Judge Lester] pending, this morning [Monday, July 16th], we asked the prosecution not to release Witness #9’s statement until there was a ruling on the Motion for Disqualification. This is an appropriate request as, should the motion for disqualification be granted, reconsideration of recent rulings by the judge is appropriate. However, the prosecution elected to make the public disclosure anyway.

Did Mark O’Mara handle this matter appropriately, or did he fumble the ball?

For the following reasons, I contend that he fumbled the ball prejudicing his client.

Let’s review the facts, keeping in mind that W9 made two statements. Statement 1 was about race and Statement 2 was about sexual molestation.

1. 05/24/2012: State files a Request for a Protective Order seeking non-disclosure of W9’s statement;

2. 05/24/2012: Defendant’s concurrence;

3. 06/01/2012: Hearing on the Request for a Protective Order;

4. 06/13/2012: Order Denying Request for Protective Order;

5. 06/18/2012: Defendant’s Motion for Reconsideration specifically mentioning W9’s second statement (accusing defendant of sexual molestation), but not describing the subject matter;

6. 06/29/2012: State’s Response to Motion to Reconsider Disclosure;

7. 07/13/2012: Defendant’s Motion to Disqualify (filed at 11:20 am);

8. 0713/2012: Order Denying Motion for Reconsideration (filed @ 12:02 pm). Judge Lester says W9’s statement is admissible and should be released to the media because race may be an issue at trial;

9. 07/16/2012: Defendant’s Motion for Stay of Order Denying Reconsideration (filed at 10:56 am) arguing that the order must be stayed until the Motion to Disqualify is decided because it was filed first.

10. State releases W9’s two tape recorded statements at 11 am.

Keep in mind that neither side wanted to disclose the sex statement in a pleading that could be viewed by the public. Instead, O’Mara referred to statements 1 and 2, without clarifying that they involved different subject matter.

What we got here is . . . failure to communicate.

Judge Lester apparently thought both statements referred to race because he specifically said the statement might be admissible since race might be an issue. I am not surprised that he assumed both statements referred to race because the discovery released to date contains multiple recorded statements by witnesses concerning the same incident or subject matter.

The order was filed at 12:02 pm on Friday the 13th (oh, the irony), approximately 30 minutes after O’Mara filed his Motion to Disqualify. Therefore, he had Friday afternoon, the weekend, and Monday morning until 11 am to obtain an order directing the prosecution to hold off on releasing W9’s statement 2 until the matter could be reconsidered, but he did not git ‘r done.

He also did not appeal the order to the Court of Appeals.

The problem was further complicated by the judge going on vacation this past week and next week. Therefore, O’Mara had to act Friday afternoon. However, even if Judge Lester had been available Monday, he could not have acted on the motion to stop the release of W9’s statement before the prosecution released it, since the motion was filed only 4 minutes before the statement was released.

What should have been done?

An emergency oral motion and argument via conference telephone call on Friday afternoon seems to be the most obvious solution, but it did not happen. Alternatively, an emergency request for a stay before the presiding judge on Monday morning might have worked, or an emergency appeal to the Court of Appeals.

O’Mara did not attempt any of these options.

Will the evidence be admissible at trial?

Not during the State’s case in chief because it does not fall into one of the categories of admissible uncharged misconduct evidence that is admissible pursuant to Rule 404(b). If and only if the defendant were to open the door by introducing evidence that he has a law abiding, peaceful and non-violent nature, would the prosecution be able to march through the open door and confront him with W9’s accusation that he was a child molester. That is extremely unlikely to happen.

Therefore, there is no good reason to believe the evidence will be admitted at trial.

Should W9’s statement have been released to the media?

Probably not, under Florida Freedom Newspapers Inc., v. McCrary, 520 So.2d 32, 35 (Florida 1988) because:

(a) restricting public access to it was necessary to prevent a serious and imminent threat to the administration of justice;

(b) no alternative, other than a change of venue would protect Zimmerman’s right to a fair trial; and

(c) closure would be effective to protect Zimmerman’s right to a fair trial, without being broader than necessary to accomplish that purpose.

How much damage has been caused by the release of the statement?

How does one unring a bell rung round the world? The damage to Zimmerman’s defense is incalculable and the parties will not know how far and wide it may have spread until they attempt to select a jury.

Will they be able to select a jury?

Yes, I believe they will be able to eventually seat a jury of people who claim not to know about W9’s allegation or, if they do, they will claim to be able to disregard it in deciding whether the State has proven Zimmerman guilty of murder in the second degree beyond a reasonable doubt.

Sayin’ it’s so, don’t mean it’s so.

If he is convicted, will this be an issue on appeal?

Not likely. If they are able to seat such a jury and it convicts Zimmerman, a reviewing court will assume the jury followed the law and did not consider W9’s allegation in deciding the case.

If he is convicted, could this be an issue raised as an ineffective assistance of counsel claim in a state or federal habeas petition?

No, for the same reason.

Conclusion

This was an avoidable mishap that never should have happened. Mark O’Mara bears the responsibility for letting this issue slip through his fingers. But for being so busy cranking out his groundless Motion to Disqualify Judge Lester, he might have had the time and the energy to correct the problem before 11 am on Monday morning.

The convergence of coincidences is remarkable, however, almost as if this happened according to “God’s Plan.”


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