Posts Tagged ‘TRAYVON MARTIN’

By Frederick Leatherman. Posted with permission. Photo provided and sized by editor at Firedoglake/MyFDL. To join an ongoing discussion about the Zimmerman case, please go here:

Cross posted from Frederick Leatherman Law Blog

Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.

George Zimmerman in Court

George Zimmerman

To keep it simple, we are going to focus on W9’s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.

This is what she said:

The sexual abuse consisted of digital penetration of her vagina and fondling.

She ended it when she was 16 and later told her parents. Her parents told his parents.

She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.

Our client denies that he ever sexually molested her or anyone else.

We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.

We know that many, possibly all of the people in the jury pool, have heard or read her story.

What do we do?

(more…)

Advertisements

Scales of Justice
image by DonkeyHotey on creative commons, flickr

by Frederick Leatherman. For an ongoing discussion of the issues in the Zimmerman case, please go here:

Cross posted from Frederick Leatherman Law Blog.

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.”

by Frederick Leatherman. For an ongoing discussion about the Zimmerman case, please go here:

Cross posted from Frederick Leatherman Law Blog.

George Zimmerman with an American Flag superimposed over his face.

Image: Donkey Hotey / Flickr

Watt4Bob at Firedoglake posted a comment to my article, Should Mark O’Mara Withdraw as Counsel for George Zimmerman? He asked the following question, which probably is on most everyone’s mind this morning after the Sean Hannity interview of George Zimmerman last night.

I want to ask both Hannity and O’Mara what the hell good they think they did for that pathetic man, but I realize neither of them gives a damn and GZ is oblivious.

I can answer that question with three words:

EXPLOITATION. FOR. MONEY.

I am furious.

I cannot imagine myself, or any criminal defense attorney whom I respect, ever, under any set of circumstances, short of cardiac arrest, loss of consciousness or death, sitting passively beside my client as he denies any regret for killing an unarmed teenager, or anyone else for that matter, because it was “God’s plan” for him to die.

And to follow that statement with an “apology” to the kid’s parents in which he says he’s sorry they had to bury their child because he knows what it would be like to lose one of his as yet unborn children is . . . well,

What is it?

And all of this was delivered in a soft monotonous voice without any detectable trace of emotion as though he were describing doing the laundry.

Are there words that capture the depravity and emptiness of that shell of a human being?

If any of you were concerned whether the prosecution could prove beyond a reasonable doubt that George Zimmerman killed Trayvon Martin while acting with a depraved mind,, you need not worry any longer.

The prosecution must be drinkin’ the bubbly and dancin’ in the street.

I assure y’all, no client of mine would ever have said anything like that on national television with me present because I would have done something, anything, even ripped off my clothes and mooned Amerika in all my naked glory, just to shut him up.

And this appears to have been scripted.

Jesus Christ on a bicycle.

Can there be any doubt who is calling the shots for the defense?

George Zimmerman is representing himself with Mark O’Mara dancing to his tune while playing the role of his attorney.

If anyone still believes George Zimmerman is not a devious and manipulative person, please listen to this audio recording of a jailhouse telephone call when he called right-wing Pastor Terry Jones of let’s-all-of-us-sinners-party-on-the-lawn-burnin’-Korans fame to pray with him for the healing of America and ask him to cancel a pro-Zimmerman demonstration to calm people down.

Hell, listen to it anyway.

Just for the halibut.

(h/t to Crazy1946 @ my website for spotting this recorded conversation and posting a comment about it)

by Frederick Leatherman

Cross posted from Frederick Leatherman Law Blog.

Here are some definitions for y’all to keep in mind.

George Zimmerman. Photo by Seminole County Sheriffs / Wikimedia Commons.

All state and federal trial courts use sets of pattern instructions that are submitted to juries to follow during their deliberations. The instructions define legal terms, the elements of the crimes charged and the relevant defense claimed by the defendant. They also include a presumption of innocence, burden of proof, and definition of reasonable doubt instruction that is given in all criminal cases.

You are in an upper level graduate school course so you know this part by heart:

The defendant, George Zimmerman, is presumed innocent and remains innocent unless the jury unanimously finds him guilty beyond a reasonable doubt.

The defendant has no burden to produce any evidence or to testify in this case. He has a constitutional right to not testify and the jury may not assume anything regarding his silence.

The State has the burden of proving each element of the crime charged beyond a reasonable doubt.

Since the defendant admits killing Trayvon Martin, but claims he was legally justified to do so in self-defense, the State must prove beyond a reasonable doubt that he did not kill Trayvon Martin in self-defense.

A reasonable doubt is a doubt for which a reason exists. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence.

Each side is entitled to the benefit or detriment of the evidence, regardless of which side introduced it.

Evidence may be either direct or circumstantial. Direct evidence is perceived directly by the senses: vision, hearing, touch, taste and smell. Circumstantial evidence is inferred from a chain of circumstances which in ordinary common experience leads to a particular conclusion. One type of evidence is not necessarily better or worse than the other. It is for the jury to decide how much weight to give to the evidence.

Murder in the Second Degree

(more…)

by Frederick Leatherman

Cross posted from Frederick Leatherman Law Blog.

I have reached the point with GZ that I now assume everything he says is a lie, unless it is independently supported by credible evidence.

George Zimmerman with an American Flag superimposed over his face.

Image: Donkey Hotey / Flickr

It’s as if this guy is living in a movie making everything up as he goes along and now he is starring in an epic action adventure and crime thriller in which he is the heroic crime fighter targeted for assassination by all of the Black hoodlums in the land.

I cannot help but wonder if this is GZ’s consciously selected new role to play or if he’s delusional and really believes himself to be in danger.

Instead of a cape, this courageous crime fighter is wearing a bullet-proof vest and has his lead attorney pandering to the right wing drumming up dollars for justice.

For those who have given in the past, for those who have thought about giving, for those who feel Mr. Zimmerman was justified in his actions, for those who feel they would do the same if they were in Mr. Zimmerman’s shoes, for those that think Mr. Zimmerman has been treated unfairly by the media, for those who feel Mr. Zimmerman has been falsely accused as a racist, for those who feel this case is an affront to their constitutional rights — now is the time to show your support.

(Emphasis supplied)

I am not aware of any credible threat to kill GZ or a member of his family since he surrendered himself into custody after being charged with second degree murder. Before then the New Black Panther Party apparently sought to effect a citizen’s arrest, but I do not believe law enforcement took the threat seriously, or if it did, it was only for a short time.

I have to admit that I do not know for certain if he is in any danger, but I do not see any evidence that he is and, based on my experiences representing individuals who were despised and hated by most members of society, I do not believe he is in any real danger.

In my previous article, I discussed the possibility that, if GZ has chosen to play this role to garner sympathy, the strategy may backfire badly if people do not believe he is in any real danger. For example, they may see it as evidence of an obsessive and paranoid fear of Black people that explains why he would have profiled, followed, confronted and murdered an innocent unarmed teenager walking home in the rain on an early Sunday evening talking to his girlfriend on a cell phone after walking to a 7/11 to buy Arizona Iced Tea and Skittles.

If I were his lawyer, I know I would be extremely concerned that the public, especially the prospective pool of jurors, might view his actions with suspicion. Therefore, I would be advising him to cool it rather than trolling the angry sea of racism for dollars with a race-baited hook

However, what if GZ is not acting? What if he suffers from paranoid delusions that led him to profile, follow, confront and shoot TM because he was walking while Black in GZ’s neighborhood?

Is that a possibility?

(more…)

by Frederick Leatherman
Cross posted from Frederick Leatherman Law Blog.

note: To join the discussion(s) about the Zimmerman case, please follow the link above to the law blog.

Good morning, everyone. Yesterday was my birthday, so I took a little time off from blogging and did not post a new article or do a very good job of responding to many of your excellent comments. Y’all have a great discussion going on.

Commenter JD has asked what effect will all of GZ’s inconsistent statements and lies have on a jury, assuming this case goes to trial?

Put another way, just because he’s a liar, does that also mean he’s a murderer?

In this article, I propose that the answer to the question is, it depends on what he lied about and why he lied he about it.

Okay, for the sake of argument, let us suppose that y’all are members of the jury that will decide this case.

Let’s keep it simple today and just focus on GZ’s self-defense claim.

First, let’s start with some standard jury instructions.

The defendant has admitted to killing TM so that is an established fact.

The defendant claims he killed TM in self-defense and you are to presume that he did unless you are convinced beyond a reasonable doubt that he did not kill in self-defense.

The defendant has no burden to prove he acted in self-defense. Since you must presume that he acted in self-defense, he has no burden to produce any evidence.

A reasonable doubt is a doubt for which a reason exists and it may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully and carefully considering all of the evidence or lack of evidence.

Evidence may be direct or circumstantial. Direct evidence is evidence that is perceived through the senses. Circumstantial evidence is evidence of a chain of circumstances that, according to knowledge and common experience, lead to a conclusion. One is not necessarily better or more reliable than the other. As members of the jury, it is for you to decide how much weight to give to any evidence admitted in this case.

A person may use deadly force in self-defense, if he reasonably believes that

a. he is imminent danger of being killed or suffering grievous bodily injury and

b. the amount of force he uses to defend himself is reasonably necessary to prevent being killed or suffering grievous bodily injury.

An aggressor cannot claim self-defense.

Okay, now some evidence with which to work.

The prosecution will be able to introduce during it’s case in chief some, none or all of the statements GZ made. This means that before he ever takes the stand, assuming he chooses to testify on his own behalf, the prosecution will have introduced all of his statements to the police, including his conversation with the dispatcher.

Recall that the dispatcher told him not to follow TM and, as a student in his last semester of Criminology, he was taught that an aggressor cannot claim self-defense.

The prosecution also will have introduced evidence that he had been advised that a neighborhood watch person is limited to watching the neighborhood and calling the police to report crimes and suspicious activity. He was specifically instructed not to contact or attempt to detain a suspect because that is a job for the police to handle.

Assume the autopsy report has been admitted and the Assistant ME who performed it testified that the muzzle of the gun was 2 to 4 inches away from TM when GZ fired the fatal shot. The bullet entered TM’s chest 1″ to the left of the midline and 1/4 inch below the nipple and penetrated the chest cavity proceeding straight through from front to back destroying the right ventricle of the heart, the lower lobe of the right lung, and collapsed both lungs.

Assume the rest of the evidence that has been released and y’all have discussed has been admitted.

The prosecution will argue that, given the nature of what he knew at the time and the lies he told, there is no question that he lied to conceal that he followed TM with intent to find him after he lost sight of him and detain him, using force if necessary, until the police arrived.

“These assholes, they always get away,” likely will repeated over and over at every opportunity by the prosecution, particularly in closing argument.

The defense will argue that there is a reasonable doubt in this case, given the nature of GZ’s injuries that show TM was the aggressor, not GZ.

Now assume you are a juror. Are you going to have a reasonable doubt (i.e., a doubt for which a reason exists) that he killed in self-defense?

Come on in, the water is fine.

By the way, please suggest any topics on this case that you would like me to write about.

by Frederick Leatherman

Cross posted from Frederick Leatherman Law Blog

I have suspected all along that Trayvon Martin’s cell phone would turn out to be the smoking gun in the Zimmerman case and I offer the following evidence for consideration and comment.

At the 4:47 mark during Detective Serino’s interview of George Zimmerman, after Zimmerman admits that he shot Trayvon Martin with a hollow point bullet, Zimmerman suddenly volunteers,

When he was hitting me, I don’t know what he was hitting me with. I thought he had something in his hands, so I grabbed his hands when I was on top of him and I spread his hands away from his body because he was still talking and I was on top of him. And that’s when somebody came and they had a flashlight too and I thought it was a police officer, so I got off him.

In addition to claiming that Trayvon had banged his head against pavement, Zimmerman also told the EMT at the crime scene, when the EMT was cleaning his wounds with peroxide, that he had been struck with an unknown blunt instrument.

The report concludes:

Cause of injury: Struck by blunt/thrown object (9640) Mechanism of Injury: Blunt.

We know that Trayvon Martin was not armed and the police recovered only one thing near Trayvon’s body that could have served as a blunt instrument: His cell phone, which was lying in the grass next to his body.

The cell phone is Exhibit DMS 7.

The police submitted Exhibit DMS 7 to the Crime Lab with a request for a latent print examination. See Lab Report dated March 12, 2012 (see page 119)

The results:

No latent print examinations were performed per information received from Special Agent Supervisor David Lee.

Exhibit DMS-7 was returned to the agency.

The use of fingerprint powder to dust an object for possible prints (the fine powder adheres to the oil ridges left by the print making it possible to see the print and “lift” it from the object using special tape) can interfere with a DNA analysis and make it impossible to obtain a result. For this reason, one must always do a DNA analysis first.

According to Trayvon’s girlfriend, just before the connection terminated, she heard Trayvon ask,

Why are you following me?

Then she heard a male voice respond,

What are you doing here?

Then she heard what sounded like Trayvon’s headset being yanked out of the phone.

She tried calling him back, but he never answered.

I suspect the phone was resubmitted to the DNA lab for analysis, and if it was not submitted, it should be because it may have George Zimmerman’s DNA on it.

I don’t know about y’all, but I do not believe Trayvon would have confronted George Zimmerman while he was talking to his girlfriend and suddenly started wailing on Zimmerman with his cell phone.

I can easily imagine, however, Trayvon hitting Zimmerman in self-defense with the cell phone because he had it in his hand and it was the only thing he had to use as a weapon when Zimmerman attacked him.

Do y’all think that the prosecutors know they have the trump card and they have not released the lab report to prove it because they want to hold it back as long as possible?

I want to see that report.