Suburban Drive - Four Years After

Suburban Drive is not far from Orlando International Airport, so as I left the Gun Rights Policy Conference early Saturday evening, heading for home, I decided to take a peek at where Caylee Anthony’s remains were found. What does it look like today? It’s been over four years since that steamy night in mid-June of 2008, when her tiny body and personal effects were thrown into those woods like a bag of trash.

What I expected to find was something akin to what it looked like back then, dumped beneath a tree in kudzu infested woods, a mere 19’ 8” from the curb. From all of my trips to the site, I never sensed the spirit of Caylee, but I was aware of all sorts of vermin, like snakes, that call the place home. I never wanted to go near it at night because of what may be lurking about.

What I saw Saturday was pretty much what I expected. Soon after law enforcement, anthropologists and forensic teams moved in on December 11, the day she was found by Orange County water utility meter reader Roy Kronk, the place was rendered as bald as the top of my head, as if an exfoliant like Agent Orange had been sprayed throughout. I knew the place would take a number of years to spring back to life and I didn’t expect it to ever look quite like it did that fateful day, before investigators began their work. Mother Nature has taken back what is hers, and for six short months, Mother Nature was more of a mother than Caylee ever had.

To anyone who questions whether she was purposely killed, I will tell you what I heard from prosecutor Jeff Ashton on more than one occasion — you don’t make an accident look like a murder.

You don’t throw a precious little girl into dark and murky woods, either; dead or alive. 

Caylee Marie Anthony. Born 8/9/05. Found at 8905 Suburban Drive.

—

To the right of the cross is a tree wrapped in kudzu (Photo 4.) At its base was where Caylee’s skull and personal effects were found, along with other bones. The rest of her skeletal remains were scattered over a half-mile area.

Click photos to enlarge

Mark O'Mara's Speech at the Gun Rights Convention

I think I’ll pretty much just let this speak for itself. Bear in mind that  the video does go in and out of focus, so you may get aggravated occasionally. Maybe not. The sound is intact, and that’s the main thing.

I have two more speeches that were introductions to this one, by attorneys Eric Friday and Jon Gutmacher, but they are giving me some problems. I know this is the one you want to see the most, though. However, I do feel it’s important to bring you the other ones, and when (and if) I can fix them, I’ll present them here and on YouTube.

I hope this video generates great discourse. I must say that, while sitting in the room with him, he does give a good speech. At least, I think so, but you can see for yourself…

Also posted at the Daily Kos

Cindy Anthony's Mother Passes

  From the Orlando Sentinel:

Shirley Marie Plesea

PLESEA, SHIRLEY MARIE, 85 of Mt. Dora, passed away Thursday September 6, 2012, after enduring metastatic breast cancer. Born Shirley Marie Giddings, a native of Warren, OH, she and her surviving husband of 66 years, Alexander retired to Florida in 1989. She leaves behind three sons, Daniel of Fort Meyers, Gary of Port St. Lucie, Rick of Murfreesboro, TN; a daughter Cynthia Anthony of Orlando; five grandchildren; and her sister Mary Lou Lillicotch of VA. She is preceded by her mother Velma Lucille Giddings; her brother Robert Giddings; her sister Anne Markle; and her great granddaughter Caylee Marie. Shirley was a devoted wife, loving mother and grandmother, a cherished sister and friend. She will be sadly missed. In lieu of flowers, the family is requesting a donation be made in her memory to Susan G. Koman for the Cure. Donations can be made online or mailed to:

Susan G. Koman

Attention Donor Services

PO Box 650309

Dallas TX 752650309

To everyone who followed the Casey Anthony case, we all had a soft spot in our hearts for Shirley. At this time, I would like to extend my condolences to her entire family. Take comfort in knowing that she is holding on to Caylee Marie.

Holstering a Lie

 

Frantically, White-Hispanic Man fought for his life, screaming, kicking and shimmying, as the mighty monster, Big Black Gangsta Boy, grabbed the gun from its holster, nestled along the right backside of our legendary hero, George ZZZIMMERMAN. Tossing and turning they went, as Trayvon Martin, gripping George’s head with both hands, smashed it over and over and over against the sidewalk pavement, in what must have been at least one-hundred times. CRACK! CRACK! CRACK! People on-scene heard the muted sounds of breaking eggs. Trayvon was better than the best Ninja fighter, everyone later described, as he took his third and fourth hands and covered George’s nose and mouth. Good thing he was still able to blow those desperate cries for help out his rear end. Better yet that, as Trayvon held onto George’s arms with his fifth and sixth hands while grappling for the deadly gun with his seventh, super-duper ZZZimmerman was able to break his arms free from the gangsta’s vice-like grasp and pry the gun away in the nick of time, single-handedly taking precise aim and firing it directly into our enemy’s rapidly beating heart. POP!

Yes, God was on our mighty hero’s side that night because, Trayvon, who stood 5-feet taller and 300 lbs. heavier than the demure, yet pudgy George, ended up losing the war after knocking the man 40-feet south with one single blow. KAPOW! Through the air ZZZimmerman went, in the opposite direction, too, as the young teenage Trayvon, with one giant leap, landed viciously on top of his stunned target, like a lion lands on its prey.

HA! HA! HA! PFFFT…

That’s the way some people like to describe the way it happened, but in reality, it didn’t. As a matter of fact, I believe the gun’s recoil hit George in the face, not Trayvon’s fist, but speaking of blows…

In a huge blow to the defense, forensic tests made public today show that Trayvon’s DNA WAS NOT found on George’s gun. The only DNA that could be identified was George’s. That means Trayvon NEVER touched the gun. PERIOD. Or you can buy into the Zimmerman spin on it, I’m sure, and excuse it this way: Just because it’s not on the gun means nothing. George’s super-clean DNA wiped off dirty Trayvon’s. George’s is much more powerful. Besides, Trayvon was just “going” for the gun. George stopped him from ever touching it. Our hero! End of story.

Sure.

Just remember that, in a court of law, evidence that’s not evidence is no evidence at all. That means the DNA found on the gun is real evidence. George’s DNA. The DNA that wasn’t, isn’t. Get it? The lack of Trayvon’s DNA on the gun will do nothing to help the defense. It may, however, be argued earnestly on pro-Zimmerman blogs and forums, but that’s it. Call it damage control. My advice is to ignore them. The Florida Department of Law Enforcement tested samples from the gun’s grip. Just George. No one else, and with more tests performed on other parts of the gun and holster, technicians were only able to positively identify that he had control of it. Was George too fast on the draw for Trayvon to try to defend himself?

Does that mean Trayvon never fought for the gun? Does anyone really believe he had a seventh hand? How about a third?

I rest my case.

Links:

Case Part 5: Gorgone FDLE Complete Report

FDLE Reports R

GZ State’s 7th Supplemental Discovery (Redacted)

Cross-Posted at Daily Kos

The Labors of Social Ostracization

IT’S ALIVE! IT’S ALIVE! IT’S ALIVE!

“Osterman’s book and TV spot, although well-intentioned, are ill-timed and done without input and NOT approved by the defense.”

So said a recent @gzlegalcase Tweet from the George Zimmerman Legal Case website in response to the release of Mark & Sondra Osterman’s book, Defending our Friend: the Most Hated Man in America. Mark and his wife are the Zimmermans’ closest friends. Mark considers George his brother. It’s much more than just a mere bromance. From Dr. Phil’s interview:

“George had pure ideals, a nobility of character that I admired. I kind of wanted to be like him,” Mark says. “When I first heard that George had shot someone else, I was extremely shocked. I know that it would have been the absolute last resort.”

I sense a rather strange relationship between Mark O’Mara and his client. I’m certain that the attorney begged his ticket to fame and fortune to refrain from going on The Sean Hannity Show to spill the latest version of his face-to-face with Trayvon Martin. I think Osterman, Zimmerman’s own personal zenmeister, coaxed his li’l grasshopper to take to the airways. Unfortunately, that particular outing did absolutely nothing to enhance his credibility, but I suspect it was God’s plan all along to show the world exactly what made this grasshopper hop. In that regard, Osterman succeeded, and so did God, I guess, because li’l grasshopper ended up winning the hearts of no one. But don’t tell the Ostermans.

That’s why I am inclined to believe that this new book revelation came with George and Shellie’s blessings. Another shot. Any opportunity li’l grasshopper has to expose his name to glaring lights and stardom, he’s all for it. Cha-cha-ching! After all, he took this shooting as his ticket to paradise, as he and his wife alluded to in a taped phone conversation during his initial incarceration at the Seminole County jail, as the money kept rolling in:

“After this is all over, you’re going to be able to just have a great life,” Shellie said.

“We will,” George replied. “I’m excited.”

“Yeah, you should be. You should be excited,” Shellie said. “I wish you were here, of course.”

“I will be,” he said.

“Isn’t it crazy how something like this just makes you put everything in perspective in life?” Shellie said. “It’s amazing how insignificant the things we stress out over are.”

“I agree,” he replied.

Imagine that. They both agreed that the shooting death of Trayvon Martin was so insignificant, it was nothing to “stress out” over. Why, even the second-degree murder charge was nothing but a farce, and this is a complete contradiction of what Osterman told Dr. Phil. Oh, how George cried and cried. What this illustrates to me is that Zimmerman looked up to Osterman as his iconic mentor; the man who would justify his need to be a top cop. While I’m never going to infer that the 28-year-old set out to shoot anyone that night, he had convinced himself that it was a right thing to do given the right circumstances. He was trained. It was pumped into him and he was primed. What better way than to set those circumstances up the right way? His way. This would make him Osterman’s equal. Yes, this was God’s plan; this was his destiny. Osterman would be proud. And in the end, he was.

While I could ostracize the air marshal, I won’t. He has no idea what kind of Frankenstein monster he helped create. He only saw his student’s docile side. Granted, Osterman was once fooled by a con man when he and another Seminole County sheriff’s deputy met Juan Diaz, who convinced them he was a second basemen for the New York Yankees. Sure, the guy took them to strip clubs flashing money, and Osterman ended up losing his job over it in 1998, but that was a long time ago. Certainly, he wouldn’t be deceived again. Would he?

I think so. But still, I won’t hold it against him. Not personally. Even in the 1931 horror movie, we could feel some compassion for Dr. Frankenstein, who didn’t set out to create evil, but in the end, he still came to the beast’s defense and lost whatever innocence was left. While I am convinced Osterman is a fool for believing Zimmerman’s alibis, we all tend to put faith in our friends; some more than others, and there remains that inherent element of naiveté. We want to think people are well-intended. How many professionals — doctors, lawyers, airline pilots and, yes, federal agents — find out their spouses have been cheating on them long, long after the fact? Let’s face it, Zimmerman is a natural born liar. While you may question Osterman on his judgment, I think I’ll be looking at something else that hit me like a brick; something he said on the Dr. Phil show. It may be meaningless, but still…

“When I first heard that George had shot someone else, I was extremely shocked.”

Someone else? Just how many people has George Zimmerman shot? That triggered my alarm. Where was Osterman’s safety when he was shooting his mouth off? Oh, that’s right, he doesn’t use one. Straight from the hip. Just like li’l grasshopper.

TO EACH THEIR OWN

Speaking of the monsters we create, it’s easy to see what can happen when people let things get out of hand. Caution is thrown into the wind and trouble flares. During the entire time I covered the Casey Anthony case, I watched people go from friendly and mild-mannered to as loony as they come, all in the name of justice for a little girl they didn’t even know. Don’t get me wrong, we all seek justice, but people vary on how intent they are to get it and how far they are willing to go to prove it is their way or the highway. Talk about standing your ground. What is often neglected is that it is up to the court system to decide, not the public, as we shockingly found out when the jury came back with their verdicts at the end of Casey’s trial. Interestingly, as adamant as people were throughout that ordeal, how quickly they moved on.

Because I had a popular blog, I was subject to a lot of scrutiny. I think there’s another blogger who is quite aware of that now. Out of the woodwork came bands of miscreants determined to shut me down. I was gay, I had AIDS, I was a convicted felon and so were my parents. I was a plant for the defense out to take down the sitting judge. One woman had her grandchildren chanting “Death to Marinade Dave!” and she proudly told others. Everyone who dared comment on my blog became targets for attack. One was supposed to be thrust into a snow bank and left to die. It was the most disgusting group of people I had ever run into in my life. Ironically, these very people prayed deeply to God that justice would come for Caylee while they hypocritically spewed hatred on people they didn’t know from Adam.

Here we are, at it again. With Zimmerman, there’s the race factor. There’s gun rights. Emotions are running quite high across a much broader spectrum. There’s politics; liberals against conservatives and Democrats against Republicans, not to mention the NRA and Second Amendment rights. There’s a $10,000 bounty on Zimmerman’s head, dead or alive. We are witnessing character assassinations of the “n”th degree, with “n” being the word that most folks should have thrown away with the dirty bath water they washed their mouths out with long ago. Once again, people are getting hurt in so many God-awful ways. Ironically, one blog opens their day with The Lord’s Prayer before their brood goes on a self-righteous rampage on everyone and anyone who stands in their path. Trayvon was a drug addicted thug dealer with a history of violence. Every single word that comes out of the mouth of George Zimmerman is the Gospel truth. Every word. Yet, they really know nothing about him.

This is my opinion. What they talk about over there is their business. While I certainly disagree with their opinions, they have a right to discuss the case the way they want, although I do draw the line on spreading falsehoods and, particularly in this day and age, republishing copyrighted artwork that’s licensed to someone else, especially when it’s pirated from the website they are attacking that actually paid for the work. This is a real war, folks, and people are going to get hurt.

CLICK TO IMAGE TO ENLARGE

There are also blogs that are intent on implicating others in the crime. We saw it with Roy Kronk during the Casey case. The poor guy was run through the ringer because he found Caylee’s body. Even Leonard Padilla claimed Kronk was involved in some sort of intricate daisy chain. Kronk placed the body there, not Casey. How sad that people who do good things are sometimes burned beyond recognition by a false story that’s so fiery to touch, it blinds some to the truth. Sadly, his life will never be the same. Almost a hero, he’s also seen as a villain.

Look at one of the rumors that’s made the rounds of late. Someone was in the vehicle with George Zimmerman the night of the killing. It was Frank Taaffe. No, it was Shellie. No, it was Mark Osterman. Whoever it was, it has become Gospel to those “fact” finders who choose to buy into it. They need no proof because, so it was written, so it must be true. Call it the Lemmings Doctrine.

The problem with this sort of missive is that it can destroy a person. No doubt, Frank Taaffe has his own monsters to fight, and he certainly needs no further encouragement to go off the deep end, so why push him off the edge? Is it fun to belittle a teetering man?

The fact is, George Zimmerman acted alone. All by himself, he pulled the trigger. Why try to include others? In his book, Mark Osterman wrote that Shellie was at her father’s house at the time of the shooting. She immediately called him while he was out walking his dog in his own neighborhood. He was never at the scene prior to the police showing up. Whether you choose to believe him or not is your own prerogative, but I base my opinion not on what he wrote. Instead, I use common sense, just like what generally guided me throughout the Casey Anthony case. I take my guidance through documentation, evidence and the State. Nothing points to anyone else. Not one shred of evidence.

For example, every piece of trash in the woods where Caylee’s body rested was not attributable to her. That old worn out tire did not come off her car. There was no proof the needle in the bottle ever touched her hands. The State of Florida never used it in any of their documents, and that’s where I put my faith. Nowhere in this present case has the State mentioned an accomplice at all, and until they do, the thought of it is not plausible.

In the meantime, we are not put here on this earth to make a mockery of others, are we? Take it from one who knows; one who’s experienced it — it’s not fun being the target of incessant, never ending ridicule, abuse and lies that lead nowhere but down, especially coming from people hiding behind some really strange faith in a god that not only encourages it, but seems to relish in it. That’s not my God, and it’s as much of a mockery of God as Zimmerman telling Sean Hannity that the shooting was God’s will. How ludicrous.

Tree hugger, Tray hugger, what’s the difference if it’s nothing more than a stupid mind game where all that matters is that YOU win? Plow into everyone in your path!

Cross Posted on The Daily Kos

A Portrait of War

There isn’t a day that goes by when the thundering echoes of war escape us. Today, we live in a world rife with radical extremists, defiantly justified to maim and kill in the name of their god. The following story is my hideous wake-up call. It came at a time when wars were fought over more mundane causes - patriotism, democracy, communism, bigotry and territorial rights. This was back when building a bigger and more powerful bomb was all the rage, and nations proudly strutted their massive hardware in a show of strength and unity in order to intimidate their neighbors and enemies. Today, our enemies just strap a bomb to their chest and blow themselves up.

On a distant morning in 1967, one of my classmates was quietly asked to get up from his desk and follow the administrator out of the classroom. I remember that day and wondering why. Did he do something wrong? It didn’t take very long before the school principal announced on the P.A. system that his cousin, Van Dyke Manners, was killed in action in Vietnam. He was one of the first from Hunterdon County, New Jersey to die in the line of duty. I didn’t know him personally, but I remember it well because it was a solemn day. My friend had lost a loved one. Greg did not come back to class that week. To a 14-year-old, those echoes of war were a distant sound that lightly flickered in our young minds. We never thought of death then. We were invincible, but with each passing day, the reverberation grew louder and louder, and reality hit us fast and hard. The Vietnam War was in full boom.

Back then, what was going on in our own back yards seemed more important than anything else, but the Vietnam war was lurking out there. Despite our youthful dreams and aspirations, the war never escaped us. We saw it on our black & white televisions. We heard it on our AM radios. It made headlines in the daily newspapers. Everywhere we went, the specter loomed large and it cut deeply into our subconscious minds.

Early in 1968, a girl who lived up the street from me asked if I would be interested in creating a portrait of her boyfriend. Back in those days, a small town was just that. Windows were left open because air conditioning was a luxury. We weren’t afraid to leave our doors unlocked, and neighbors knew all the gossip. I was known as the left-handed artistic kid. Ask Dave. He knows how to draw.

She was a little older than me, and her boyfriend had enlisted in the Army. She offered to pay me and I accepted. I asked her to round up whatever photographs she could so I had something to work with. I asked her if I could meet him. To an artist, it’s good to know something about a subject that photographs can’t tell you. Because of that request, I got to know Mike Baldwin. At 21, he was a man. At 15, I was not. He was old and mature. I was still a kid. He shaved, I didn’t. With a war going on, I was in no hurry to buy my first razor.

His girlfriend asked me to draw the portrait as big as I could. When I went to the store to buy materials, my old “Be Prepared” Boy Scout lessons taught me to have a back-up plan, so I purchased two poster boards, just in case I messed up. I couldn’t just go to the store back then when I was too young to drive.  Well, I didn’t mess up, so I had a blank sheet and decided to draw another one, identical to the first. Buy one, get one free. I don’t know what compelled me to do it, but I’m glad I did. Maybe I thought if the relationship didn’t work out years later, at least he would have one to share with his family. That must have been the reason. Maybe the death of Van Dyke put apprehension in my heart. You know, one for his mother, just in case.

When I finished the drawings, I made a date to deliver the artwork. My neighbor had invited Mike and his mother to “attend” the presentation. Everyone was very pleased with the job I had done, especially his mother, who was honored to have her son’s portrait captured by a local artist.

Soon afterward, he left for Vietnam. He went because he believed in a cause. He believed in America and freedom. In school, we were taught about the Domino Effect. Red China didn’t exist on any of our maps and globes. It was just a grayed out mass of nonexistent land. Call it Peking ‘duck and cover.’ Back then, the Domino Effect was a theory that if one country falls under the influence of communism, then the surrounding countries would follow. North Vietnam was one of those countries. South Vietnam was not. Today, it is one country, but back then, 58,000 red-blooded Americans gave up their lives. Michael Baldwin was one of them.

44 years ago today, he became a statistic. His body was zipped up in a bag and shipped home. That was the day I awoke to the tragedy of war. It was my first real experience with the horrors of conflict and someone I knew was dead because of it. 

One of the things I learned, and it’s very important, was that Michael Baldwin put his country before his life. We lost so many and what did we gain? I know I gained a whole lot of respect for our fellow citizens who march off to war. He was a man and I was a boy back then, but I still look up to him and I am now 42 years older than he was on the day he died. To this very day, I wonder what would life be like had he lived. Would he have married my neighbor or someone else? Would he be bouncing his grandchildren on his knee today? Would he be happy? Or would he be mourning the loss of his children and grandchildren because of our present day wars? The more war changes, the more it remains the same. Death is still death and the loss of loved ones over religion and politics is still just as senseless as it was when Michael Baldwin died.

Today, he would be 67-years-old, soon to be 68. I will remember him as a true American hero; a very proud young man. As for the identical pictures I drew, they are lost and gone but not forgotten. In my mind, the memory of them will forever remain a haunting portrait of war.

Sgt. Michael Richard Baldwin (7/19/1947 - 9/12/1968) KIA - Binh Long Province, South Vietnam, ambushed while on reconnaissance 5 kilometers Northeast of Loc Ninh, along with:
Ssgt. Phillip Kenneth Baker - Detroit, MI
Pfc. Eugene Russell Boyce - Spartanburg, SC
Sp4. Wayne Daniel Jenkins - Bryson City, NC
Pfc. Kenneth Leroy Martin - Los Angeles, CA
Pfc. Marion Luther Oxner - Leesville, SC
Pfc. Dale Arden Palm - Toledo, OH
Pfc. Kurt Francis Ponath - Cudahy, WI
Sp4. J C Williams Jr. - Muncie, IN
Pfc. William Wittman - Binghamton, NY

September 12, 1968, was a long and sad day for Alpha Company, 1st Battalion, 28th Infantry, 1st Infantry Division.

Pfc. Van Dyke William Manners (11/10/1945 - 2/15/1967) KIA - Kontum Province, South Vietnam

To all our brethren lost in wars, rest in peace. Your deaths will never be in vain.

I first published a different version of this story in 2006. Michael Baldwin’s cousin searched his name on Google and found my blog about a year later. She wrote me and said, “I just found your website and read your article about Mike.  I just wanted to say thank you…  It touched me and helped me remember my cousin very fondly.  He was a good guy and the last of the Baldwin men in our family.  He is remembered fondly by many of my friends who still [live] in Flemington, as well as my family.

“I also wanted to let you know that Aunt Peg didn’t handle Mike’s death very well.  She couldn’t even bring herself to go to the funeral.  I do remember that both she and my Uncle Alvin (Mike’s Dad) did attend the memorial at Ft. Dix after his death.  That was really all she could handle.  She always said she preferred to remember people while they were alive.  I can’t say that I blame her.  I didn’t understand it in 1968, but I get it now.

“Mike left a large impact on me.  The memorial service was really something and I can still remember the 21 gun salute at his funeral in the cemetery in Flemington.”

Mike’s mother passed away in 1993. His sister contacted me right after her cousin got in touch with her. Here is what she told me:

“My cousin called me and told me about your blog.  She had seen Michael’s name in it and read the story.  I read it too and also your reply to her.  I am Mike’s youngest sister.  You made me cry—but it was a good cry.

“My family and I are so pleased that we are not the only one’s who remember Mike.  Looking through your blog and your e-mail to Mary, I found it so interesting that there are so many things we are connected through.

“I go to church at Kirkpatrick Memorial Presbyterian church in Ringoes. Van Dyke’s mother went there before she died a couple of years ago and there is a stained glass window dedicated to him.

“My father worked for the Forans in the foundry they owned in Flemington.  My father was friends with Walt Foran. [My friend Frank’s father.]

“When I read your blog, I could feel that you knew Mike well.  He was a great kid and we loved him.  You talk about my mother—you may not know it but I had a brother who was older than Mike—his name was Alvin—we called him Skip.  He died in a car accident on Sept. 13, 1958.  No, I didn’t confuse the dates, it was one day short of 10 years later that Mike was killed.  It was a blow that my parents never recovered from.

“I am so glad that you wrote about Mike, it makes me feel that we are not the only ones who remember. Thank you again for keeping his memory alive.”

Please see: NJ Vietnam War Memorial - Michael Baldwin

The Misconception Of A Stand Your Ground Hearing

Right after Judge Lester was removed from the bench, Mark O’Mara said he would likely schedule a “stand your ground” hearing sometime next year. On August 31, Rene Stutzman of the Orlando Sentinel wrote:

Nelson will now be the judge who must decide whether Zimmerman, who is charged with second-degree murder, is entitled to immunity under Florida’s much-debated “stand your ground” law, which allows anyone with a reasonable fear of imminent death or great bodily injury to use deadly force against an attacker.

Defense attorney Mark O’Mara has said he would likely schedule that hearing next year.

“It will take a tremendous amount of judicial courage at this point to throw the case out following an immunity hearing,” said Winter Park criminal-defense attorney David Faulkner. “My guess is that any judge, Judge Nelson or otherwise, is going to let a jury decide this issue for the benefit of the public.”

Of late, there’s been a lot of discussion and, perhaps, some arguments, over the difference between filing a stand your ground motion and a Motion for Declaration of Immunity and Dismissal. In essence, they are nearly interchangeable; sort of like buying a GM or Chevy vehicle. You can’t have a Chevy without GM, but it doesn’t work the other way around. Without the stand your ground law, there would be no immunity and dismissal motion applicable in this case. In other words, the important thing to remember is that the immunity and dismissal motion is based on Florida’s stand your ground law, F.S. Statute 776.032: Immunity from criminal prosecution and civil action for justifiable use of force, which states:

A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer… As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

Initially, the Sanford Police Department followed the tenets of the stand your ground statute by not placing George Zimmerman under arrest, but that act did not mean he was free from future prosecution. Now arrested and charged, Zimmerman has a right to file the immunity and dismissal motion based on the statute. F.S. 776.012 states:

Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

Right now, we will pay particular attention to 776.012(1) and whether or not Zimmerman was right to believe that firing his gun into Trayvon Martin’s chest was necessary to prevent imminent death. After all, he said he was being pummeled to death by the teen. We will ignore 776.013 because it addresses the unlawful and forceful entering of “a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle…” 776.031 doesn’t apply, either, because it covers the use of force in defense of others.

Before going into F.S. 776.012, it’s important to first mention F.S. 776.041 and the “Use of force by aggressor.”

 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Here is where some of the confusion may originate over stand your ground and immunity. By most witness accounts, and certainly something the State can clearly establish, the fight did not end where Zimmerman described. Trayvon’s body was found 30-40 feet south of the “T” joining the east/west sidewalk with the north/south one. Witnesses will testify that there was a scuffle with people running and yelling. Who was chasing whom is not relevant at this point because, once able to escape, Zimmerman chose not to. After all, he was the man with the gun. The bottom line is, he cannot prove that Trayvon cold-cocked him there at the “T” intersection. Furthermore, he cannot prove that’s where the fight ended with a bang, as he showed in his reenactment the next day. His best bet is to not bring it up at a dismissal hearing and that means the State will not be able to address it. That’s why, in my opinion, the Defense made an “adjustment” in its strategy, and it’s what led to the confusion over stand your ground and the impending dismissal motion.

At some point, the Defense realized it stood a better chance if it heeded F.S. 776.041. Where the Defense would most likely falter during a Motion for Declaration of Immunity and Dismissal hearing lays in (1) and the first part of (2) in 776.041. Why? In (1), will the Defense be able to factually establish that their client was not the aggressor, who forced himself upon the victim, therefore committing a felony? The shooting at the “T” has been debunked by evidence. The gunshot took place far enough away to establish that Zimmerman’s story is false. If the Defense goes in that direction, so will the State, and Bernie de la Rionda will have every right to do so. And, boy, will he ever!

There’s a big word in (2)… unless, and here’s where it will come into play. Let’s move south. For sure, there was a fight, and since no one can really prove who was on top and who was on the bottom, it’s important for the Defense to lay claim that Zimmerman was on the bottom, being beaten to death. I don’t believe (2)(b) will apply because there’s no testimony by the defendant that he attempted to withdraw. He will most likely assert that his mouth was covered and couldn’t speak, but if he does, the State will counter with the lack of evidence; there was no blood, saliva, or any of Zimmerman’s DNA on the victim’s hands. The Defense will not be able to prove it, any more than it will be able to prove that their client was the one yelling for help. If they try, the State will mention that the screaming stopped immediately after the gunshot while Zimmerman stated that he continued yelling for help as he spread the victim’s lifeless hands away from his torso.

Let’s try (2)(a) instead. Bingo! Here’s Zimmerman’s greatest hope. By claiming, which he has all along, that his life was in danger and that he had exhausted all means to escape, he had no choice but to shoot. OK, fine, but how did he gain access to his gun? The only way to explain it is to show the judge exactly how he did it, and the only person who could do that is George. Without taking the stand, he can’t do that because the video reenactment is too sketchy. If not that, then what’s left?

The medical records.

Yes, let’s just say that Zimmerman did have a fractured nose, meaning broken to some extent. The ARNP who diagnosed him was qualified to do so, and that’s what she wrote in her report:

1. Scalp Lacerations: No sutures needed given well-approximated skin margins. Continue to clean with soap and water dally. We discussed the red flag symptoms that would warrant Imaging given the type of assault he sustained. Given the type of trauma, we discussed that it Is imperative he be seen with his Psychologist for evaluation.

2. Broken Nose~ We discussed that it is likely broken, but does not appear to have septal deviation. The swelling and black eyes are typical of this injury. I recommended that he be evaluated by ENT but he refused.

Review of Systems:

Constitutional Symptoms: Denies fevers and/or chills.

Eyes: Denies loss and blurring of vision, diplopia.

Ear, Nose, Mouth, Throat: Admits nose pain. Denies hearing loss, tinnitus.

Cardiovascular: Denies palpitations, chest pain/pressure.

Respiratory: Denies shortness of breath.

Gastrointestinal: Denies abdominal pain, nausea and/or vomiting.

Integumentary: Admits- (Scalp lacerations).

Neurological: Admits head trauma. Denies tingling, numbness, weakness, headache, dizziness, speech difficulty, gait disturbance, loss of consciousness.

Psychiatric: Admits stress. Denies suicidal thoughts or attempts.

Nothing in that document paints a portrait of a person remotely close to death the day before. Even the Sanford Fire Department EMT report from the night of the incident showed nothing life threatening. Patient Conscious. Breathing normal. No external hemorrhaging. Mucous membrane normal. Extremities normal. Abrasions to his forehead and bleeding/tenderness to his nose. Small laceration to the back of his head. All injuries have minor bleeding. If you combine both reports, it doesn’t help the defense because Zimmerman cannot, in any way, shape or form, establish that he was remotely close to death, and if he tries, he opens a can of worms the State is going to take full advantage of.

§

Back to the matter at hand — the legalities. Enough of the medical. If Zimmerman can factually establish that his use of deadly force occurred under the circumstances outlined in the above statutes, he could walk. Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008) showed that F.S. 776.032 established a true immunity and not just a justification for what he did. According to the Jacksonville law firm, Hussein & Webber’s website:

The Court stated that, when immunity under the law is properly raised by a defendant, the trial court (at a hearing) must decide the matter by confronting and weighing only factual disputes.  Petersen held that a defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches. Unlike a motion to dismiss, the trial court may not deny a motion for immunity simply because factual disputes exist.

The main issue in this case will be whether or not Zimmerman will be able to show enough evidence to establish immunity. Once again, I must reiterate what I touched on in The Prince and the Pea: Subjective or Objective Fear in the Petitioner? Was Zimmerman’s fear subjective or objective? Was he correct in fearing for his life or did he just panic? That’s the difference, and there’s a huge distinction between the two and whether or not immunity applies. Of course, there’s one more thing that could only be brought up at trial; did George Zimmerman shoot Trayvon Martin in cold blood? For that reason alone, and for the lack of evidence showing “by a preponderance of the evidence,” Mr. O’Mara had better be preparing his client for trial. I see it no other way.

Cross posted on the Daily Kos

The Adventures of Zimmerman: Lesson #1

This is the first of, what I hope to be, many lessons from the mind of George Zimmerman. Here, he explains why there’s a discrepancy between the time he laid out (differently on more than one occasion) and the actual time it took for the night of February 26 to unfold…

Hopefully, Ol’ Georgie Boy will be open to answering some of your questions in future videos…

A Full Nelson?

On November 6 of this year, Americans who are registered to vote will have the opportunity to elect the next president of the United States. This may or may not include hundreds of thousands of illegal aliens and half the roster of dead people in the city of Chicago, but that has nothing to do with the context of this post.

If President Barack Obama prevails, he will have another four years in the White House. If Mitt Romney wins, he will be sworn in as the 45th president on January 20, 2013 — Inauguration Day. How this election fits in with the topic du jour is quite simple. There will be a smooth transition between the outgoing and incoming members of the executive branch. It’s the same as it’s almost always been since the inception of this great country. Every four or eight years, we witness this peaceful transference of power, and the country never skips a beat.

It’s the same with the George Zimmerman case. In a 2-1 vote, the Fifth District Court of Appeal rendered its decision regarding Judge Kenneth R. Lester, Jr. 

PER CURIAM.

George Zimmerman petitions for issuance of a writ of prohibition. This is the proper mechanism for challenging the denial of a motion to disqualify a trial judge. See, e.g., Lusskin v. State, 717 So. 2d 1076, 1077 (Fla. 4th DCA 1998). Reviewing the matter de novo, see R.M.C. v. D.C., 77 So. 3d 234, 236 (Fla. 1st DCA 2012), we grant the petition…[.] Accordingly, we direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.

PETITION GRANTED.

While some may gloat over the decision to remove Lester from this case, I most certainly do not. I feel that the judge scolded Zimmerman and nothing more. I am convinced that he would have soldiered on, putting that reprimand behind him. He would heve continued to rule judiciously and fairly, but that’s old news now; what’s done is done. There’s no point in arguing over the how and why of it. While we had our discussions and disagreements over the motion to recuse and subsequent writ of prohibition, today, it is nothing more than water under the bridge, and it’s time to move on.

I am convinced that, just like our election process, there will be a very smooth transition from Judge Lester to the person Chief Judge Alan A. Dickey names as his successor. Who will it be…?

First of all, let me explain what I know about the inner workings of a courthouse, having some experience in it. 

At the very beginning of the Casey Anthony case, Ninth Circuit court Chief Judge Belvin Perry, Jr. asked several judges if they’d be willing to take the case. One by one, they said their dockets were too full. Keep in mind that these were judges working the criminal division, not civil. Judges routinely rotate between criminal and civil every two years or so. No one wanted the case. Perry then turned to someone else. He made a wise choice when he asked Judge Stan Strickland to take the case. You are one of my best judges and, most certainly, extremely qualified to handle it. Strickland agreed, despite having recently moved from criminal to civil. It’s important to note that Strickland continued to hear civil cases, too. Judges, like criminal defense attorneys and prosecutors, are not narrow-minded or restricted. Like servers in a restaurant, they can wait on more than one customer at a time. Trust me, to Judge Lester, the Zimmerman case was just a job and nothing more. What happened to him is part of the process.

When the first judge in the Casey Anthony case was asked to step down, he did so without argument. Why he did it is of no relevance in the Zimmerman case. What matters now is, where do we go from here? When Judge Strickland removed himself from the bench, what happened next was somewhat revealing and it will be similar, if not identical, to the type situation that Judge Dickey is faced with today.

[Since this writing, Judge Debra Nelson has been named to replace Judge Lester.]

During the Anthony mess, media pundits were reporting that, generally, chief judges take on highly problematic cases. Judge Belvin Perry certainly did end up doing just that, but in the interim, it was far from as simplistic as the news actually reported. Behind the scenes, Perry was asking his Orange County circuit court judges to take over the case. I will never reveal how I know that, but it came from more than two sources — all at the top. One-by-one, they turned him down. Do you see the caseload I’m sitting on? I’ve got over 3,000 cases on my docket right now, was the common mantra. Ultimately, Perry was left with no choice. It was, after all, a most problematic case and, reluctantly, he decided to take the helm. The rest, they say, is history.

§

In one of his recorded phone calls from jail, Zimmerman discussed what judge he wanted with his wife, Shellie. This was just as Mark O’Mara signed on to defend him, so it was an early conversation. Zimmerman hoped to get retired judge O.H. Eaton. Eaton has a sterling reputation as a fair judge, levelheaded and extremely knowledgeable in law. What Zimmerman knew about him then is a mystery, but even I was aware of it.

He ain’t gonna end up with Judge Eaton. And I’ll tell you why I think that. Eaton is a retired judge. That’s not to say he’s too old. It has nothing to do with that. Retired judges are not salaried. Retired judges are freelancers. They make a lot more $ per hour than sitting judges. This trial is at least a year away. Would the taxpayers of the 18th District, particularly voters in Seminole County, agree to that kind of arrangement? Granted, you couldn’t end up with a better judge, but would he be willing to take on the task if asked? He doesn’t need it. He’s the kind of retired judge who listens to cases to take the burden off other judges, but they are not major cases like this one. If Dickey runs out of judges in Seminole County, better yet that he would discuss this matter with some of his active judges in Brevard County before handing it over to someone outside of his circuit. Technically, Eaton is no longer active.

One of the names being bandied about is Seminole Circuit Judge Debra S. Nelson. She is every bit as qualified as Judge Lester to sit in judgement of Zimmerman. As a matter of fact, she is most deserving because she is also a no-nonsense judge who was appointed to the 18th Judicial Circuit in 1999 by then-governor Jeb Bush.

In 2007, Judge Nelson presided over a rape case. The accused male, then 41, was eventually convicted of dragging a 10-year-old girl into the woods, choking and raping her. It might be interesting to note that the perpetrator, Antonio Rosales, was in the United States illegally. Also, during the trial, he confessed to murdering a woman in Tucson, Arizona.

While his trial was under way, he went berserk in the courtroom:

His defense attorney, Tim Caudill, moved for a mistrial. He claimed that the outburst tainted the jury. Judge Nelson rejected that, and upon sentencing, she did something unusual. Let me preface this first. Because of the girl’s age, in rape convictions, the charge carries a mandatory life sentence. Judge Nelson decided to take it two steps further. She added two additional life sentences, but she never gave a reason why. To this day, the sentence stands. (See also: Orlando-area jury convicts illegal immigrant of 2003 child rape)

What’s most interesting to me is that Judge Nelson has a reputation for setting harsh sentences. In George Zimmerman’s case, he’s facing a mandatory 25-years to life in prison. That’s because of the 10-20-life law enacted by Governor Jeb Bush in 1998. It’s sometimes referred to as “Use a gun and you’re done” law. According to Florida’s 10-20-life statute, anyone who pulls a gun during a crime receives:

• Felon in possession of a gun - mandatory minimum 3 year prison sentence
• Brandishing a gun in the commission of a crime - mandatory minimum 10 year sentence
• Discharging a gun in the commission of a crime - mandatory minimum 20 year sentence
• Injuring or killing another person in the commission of a crime, by discharging a firearm - 25 years to life in state prison

Just ask Marissa Alexander, a young Jacksonville mother who was convicted of three counts of aggravated assault and sentenced to 20-years for firing a warning shot into a wall during an argument with her husband. She lost her Stand Your Ground motion and she had, what appears on the surface, to be more of an excuse for pulling the trigger than Zimmerman will ever be able to conjure up. Incidentally, the prosecutor during that case was none other than Angela Corey. She said that Alexander was angry and reckless the night of the shooting, not fearful of her life. She will bring the same argument into court when Zimmerman files his immunity motion. Was he more angry or afraid? If in fear, was is objective or subjective?

Judge Lester ruled judiciously and so will his successor. Whoever Zimmerman ends up with, that’s it. There will be no more musical benches, and who he gets will not be singing anything in his ears. He may be laughing today, but his silly games are now over.

Just for your information, In 2012, Judge Lester was deemed the best judge in Seminole County (in all categories) by his peers of criminal defense attorneys and prosecutors. So was another judge in Orange County back in the day. Oh well. If Judge Dickey decides to take the case, it’s not going to be any easier than Nelson or anyone else. Judges are not amused by the antics of George Zimmerman. Of course, that’s my opinion, but I am allowed to be judgmental… or let me say, I am allowed to say so. So will the next judge. Zimmerman is plum out of dismissal motions.

Click to enlarge image

ORDER GRANTING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY JUDGE

This article was written prior to the court’s decision regarding Judge Debra Nelson.

The Prince and the Pea: Subjective or Objective Fear in the Petitioner?

In his ORDER SETTING BAIL on July 5, 2012, Judge Kenneth Lester made several stipulations clear about what attorney Mark O’Mara’s client, George Zimmerman, could and could not do. For instance, he would be able to travel anywhere he wants as long as it’s within the boundaries of Seminole County. If he finds it necessary to leave the county, all he has to do is pass it by the court for authorization. It’s a rather plain and simple directive and something a five-year-old should be able to comprehend.

However…

In his MOTION TO MODIFY CONDITIONS OF RELEASE dated August 22, 2012, Mr. Zimmerman, through his attorneys, cited two issues pertaining to matters addressed in the judge’s above order. Call them problematic. The Court, for instance, must realize by now, due to the great amount of national and international publicity, not to mention notoriety and animosity, that Zimmerman “and his entire extended family have had to live in hiding, fearing for their own safety.” Therefore, he should be able to move out of the county, too.

I disagree with Mr. O’Mara’s choice of words. He exaggerates. How? In many ways, but for now, here’s a ‘for instance.’ It’s one thing to complain about the woes that have befallen his client, but his client and only his client was responsible for the big mess he’s in — not his family. Daddy did not hold his hand the night he pulled the trigger. Therefore, why bother bringing up any issue over his family’s fears for their own safety? It’s not that I don’t care, it’s just that there is nothing stopping them from moving out of the area any time they please. There are no restrictions on them whatsoever, and to suggest in that motion, albeit indirectly, that the Court was somehow responsible for this problem is, well, not showing a clear sense of responsibility. There is no way the Court can magically order the public to leave the Zimmerman family alone.

This is George’s unfavorably conducive style; his M.O. These are his edicts, sua sponte, not necessarily those of his attorneys. While his motions are filled with innuendos that tend to absorb what little substance they hold, it’s when he opens his mouth that we see him for what he is.

Full of Zimmermanure.

He not only speaks with a forked tongue, he also twists his tongue when he speaks. A good example of this came during his Hannity interview on FOX News. When asked if he would have done anything any differently, given ample opportunity to think about it now, he said he really hadn’t had the time to think about it, but after thinking about it, he wouldn’t have changed a thing. He regretted nothing and it was God’s plan. He had nothing to feel sorry about. Did that make sense? Wait. It gets worse.

Later in the broadcast, he turned and faced the camera, and in his best “My fellow Americans…” presidential-style address, he apologized to the nation, his wife, and everyone involved in the case, including Trayvon Martin’s parents. In my opinion, it was, at best, sickeningly insincere. Incidentally, a truly biased judge would have called him on the carpet for addressing Trayvon’s parents because, in his order, Judge Lester wrote:

“The Defendant shall not have any contact with the victim’s family, directly or indirectly, except as necessary to conduct pretrial discovery through his attorneys[.]”

Redundancy

My complaint, while being about the Petitioner, also includes his attorney and how he’s handling the case; his motions, in particular. In this very same Motion To Modify Conditions Of Release, O’Mara wrote:

“One of the conditions of release is that Mr. Zimmerman is not to leave Seminole County without prior authorization by this court.”

Right, Mr. Knechel, you already said that. Well, yes I did, but so did the judge and Defense, and just to clarify, this is a two-part motion. The second part addressed traveling outside the county, not moving out. The judge’s order covered it and the defendant acknowledged it, so what was the point of this final statement in Zimmerman’s latest motion?

“The restriction of Mr. Zimmerman not to leave Seminole County has had a deleterious effect on his ability to assist in the preparation of his own defense. Communications have been unnecessarily limited to telephone and occasional visits by counsel. Mr. Zimmerman must be able to travel to meet with his lawyers, and to attend to various other necessary matters to prepare this matter to move forward.”

Hmm… deleterious… injurious to health; pernicious, hurtful, destructive and noxious according to dictionary.com. My, what $5.00 words he uses that won’t impress any sitting judge let alone little old me. While I realize the motion also asked that Zimmerman be allowed to move outside of Seminole County, a request the Court denied, the rest of it is redundant. Here, verbatim, is what the judge wrote in his July 5 order:

“The Defendant shall not leave Seminole County without prior authorization by this Court[.]”

How much clearer can one get? All the defense had to do was ask. Why was it necessary to dedicate the brunt of this motion on something that was already covered a month-and-a-half earlier? And if O’Mara were really fearful of Zimmerman’s safety while residing somewhere in the entire county of Seminole, how much safer should he feel while his client is sitting in his office in downtown Orlando? Talk about deleterious! I’m serious.

Here’s the way I see George Zimmerman. When he doesn’t get what he wants, he whines and cries. He feels boxed in and claustrophobic. He gets restless and can’t sleep at night. His mattress turns lumpy. You see, George is starting to remind me of The Princess and the Pea with one major difference. He cannot get a comfortable night’s sleep until all his demands are met. The pea, in this case, is Kenneth R. Lester, Jr. who must be removed and replaced by a fairy tale friendly judge so Prince George, his friends, his family and his fellow American loyalists will be allowed to live happily ever after.

Fearing Fear Itself

In Nit-Picking Nit-Writ, I addressed the PETITION FOR WRIT OF PROHIBITION filed by the Zimmerman defense. I pointed out how O’Mara had offered evidence about the shooting on the night of February 26 and why it was not only unnecessary, it was useless. A writ of prohibition, in this case, only pertains to why the trial judge should be recused. It’s not for anything else. What O’Mara did was inflate a very weak document with superfluous fluff, like adding TVP to a package of fatty, grisly hamburger meat, and I don’t feel the appeal court is going to buy any of it. 

I do believe that Assistant Attorney General Pamela Koller offered up a much meatier argument against the Defense appeal. I will elaborate on that a bit and address the finer points of the State’s RESPONSE TO PETITION FOR WRIT OF PROHIBITION. In particular, I want to look into the two types of fear that the district court will examine — objective and subjective.

In 2005, I wrote a post about how slants change your views of the news. Titled, An unbiased look at news slants, I last updated it in February of 2010. I think it should give you a foundation on objectivity and subjectivity.

Objective information strives to remain unbiased. Dictionaries and other materials of reference, such as encyclopedias, generally provide factual information. Traffic lights are red, green and yellow. Yellow means caution, green means to go and red means to stop.

Subjective information is formed by personal opinion. Editorial sections in newspapers are subjective. While editorials and letters to the editor can be based on fact, opinions are usually based on personal interpretations of facts. Humans are responsible for global warming. Global warming is caused by natural earth cycles, such as the Ice Age. In these cases, separate and valid viewpoints can be substantiated by citing legitimate sources.

We know that George and Shellie Zimmerman lied to the Court about access to money and a second passport they claimed they didn’t have. The judge acknowledged that in his order revoking bond and Team Zimmerman then proceeded to call it biased, including the judge’s reprimand. (It’s interesting to note that the defendant still managed to post bail despite the Court setting it much higher than what was originally granted.) The fact that bail was granted at all after the second request could be considered a testament to the judge’s fairness. 

The Judge’s Order Setting Bail infuriated the Defendant and his counsel. How dare the Court look at his lies at all, let alone “judge” his actions and lack of respect for the court. To do so was nothing short of biased, they claimed, so they filed their writ of prohibition with the higher court. The bottom line now is how the Fifth District Court of Appeal will look at this motion — as an objective or subjective complaint — and rule accordingly, based on objectivity. Does Zimmerman have a leg to stand on? Is his distress based on a paranoid fear of persecution in general (subjective) or has this judge exhibited (objective) behavior in the past that truly legitimizes his concerns?

Let’s look at this objectively. In its response to the writ, the State wrote:

Petitioner complains about rulings in the past in his background section, but it is well established that “[t]he fact that the judge has made adverse rulings in the past against the defendant, or that the judge has previously heard the evidence, or ‘allegations that the trial judge had formed a fixed opinion of the defendant’s guilt, even where it is alleged that the judge discussed his opinion with others,’ are generally considered legally insufficient reasons to warrant the judge’s disqualification.” Rivera, 717 So. 2d at 481 (quoting Jackson v. State, 599 So. 2d at 107; see also Areizaga v. Spicer, 841 So. 2d 494, 496 (Fla. 2d DCA 2003) (It is well established that a trial court’s prior adverse rulings are not legally sufficient grounds upon which to base a motion to disqualify).

In other words, this is not merely a complaint about Lester’s language in the bail order, it’s also about his prior rulings in Zimmerman’s pretrial motions. This is something that should be taken up post-conviction, if necessary, not now, and it epitomizes my description of superfluous fluff; not worth the paper it’s printed on. What the defense wants to do is set a silly precedent; that every single defense motion denial is biased. This would then have to include every case that has ever come before a court. Overturn every verdict because motions were denied! All in the name of George! Clearly, this is subjective thinking. “I think,” O’Mara could opine, “every motion that was turned down was done so by judicial bias.”

Of course, it’s every defense attorney’s dream, but most are smart enough to know it’s nothing more than a whimsical flight of fancy. Cheney Mason tried the same thing during the Anthony case and got nowhere.

The State cited Rolle ex rel. Dabrio v. Birken, 984 So. 2d 534, 536 (Fla. 3d DCA 2008):

Likewise, we recently pointed out that a “mere ‘subjective fear’ of bias will not be legally sufficient, rather, the fear must be objectively reasonable.” Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (quoting Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986)). We do not find Mansfield’s allegations of fear to be objectively reasonable. See also Asay v. State, 769 So. 2d 974 (Fla. 2000). Our cases support the trial court’s denial of the motion to disqualify, and we affirm the trial judge’s order. 

Notwithstanding, Lester had every right to keep Zimmerman behind bars because the State went on to say that:

The judge again set a bond for Petitioner, and Petitioner is currently out on bond. Thus, the grounds listed by Petitioner in his motion are facially insufficient.

… and that the Petitioner is manipulating the system. From Cf. Brown, 561 So. 2d at 257 n. 7:

(“We hasten to add that our holding should not be construed to mean that a judge is subject to disqualification…simply because of making an earlier ruling in the course of a proceeding which had the effect of rejecting the testimony of the moving party. At the very least…there must be a clear implication that the judge will not believe the complaining party’s testimony in the future.”).

While the assistant attorney general cited many examples of why this particular writ of prohibition is without merit, it is, by its very nature, nearly as subjective as the writ itself. Both sides came to their respective conclusions based on their own interpretations of case law. As the appellate court looks at this issue with complete objectivity, it should see that Judge Lester has not been prejudiced against George Zimmerman — and most assuredly, not personally. In my opinion, based on what the Defense and State both submitted, the original motion to disqualify the trial judge in this case was legally insufficient. Judge Lester made the right choice, and so will the appellate judges,  C. Alan Lawson, Jay P. Cohen and Kerry I. Evander.

Poor Prince George is not just afraid of a li’l old pea, he’s also afraid of his shadow. Oh, and don’t even get me started on (d)(1) and (d)(2). That’s a whole “nother” bedtime story.

Cross posted at the Daily Kos

Zimmerman Needs More Than Help

From very early on, something just didn’t seem right about George Zimmerman and his gun. It wasn’t one thing, either. It was a series of things, but one stuck out like a sore thumb. Zimmerman is left-handed, or so he claimed when handed a pen by an investigator with the Sanford police while being questioned in one of the interrogation rooms. Why, being left-handed, did he reenact the shooting using his right hand? Twice! That’s one puzzle I may be able to answer, but at the same time, it opens another one.

There are also questions about his confrontation with Trayvon Martin and how the gun came into play. Why wasn’t Trayvon’s blood on Zimmerman’s clothing? Why was there no gunshot residue on Zimmerman’s firing hand? Who or what inflicted the injury on the upper right side of his nose?

One of the questions I’ll answer is in response to something posed by ecossie possie on the previous post simply titled, The Kel-Tec PF-9. Could it have been a burn from the shell casing? I responded that I seriously doubt it, but that I would check with someone who knows.

I have a very close relative who is a major in the USAF. He did one tour of duty in Djibouti and two in war-torn Iraq. He is an avid gun collector and his personal “arsenal” is second-to-none. No one would ever question his credentials as an authority on weaponry, including pistols. To emphasize that point, he owns a Kel-Tec, but it is a model that’s a few notches up from Zimmerman’s. 

I told him I had never heard of anyone being injured by a shell casing as it ejects out of the chamber. There isn’t enough velocity. He agreed, but before I could ask him if he was aware of anyone being injured, he said he had gotten a nasty burn on his face from one. But it only touches you for a split second, I responded. He said that casings are extremely hot and one only needs to touch you for a split second to burn. So… to ecossie, you are correct, Sir. It can cause a burn, but the odds are very low that it will hit you in the first place.

I asked him if the recoil of the gun or the back movement of the slide when fired could inflict harm, and he said he doubted it. “Only if the gun is very close to the shooter’s face to begin with.” I guess that means it’s possible, but highly improbable. In this case, who knows?

What about blood splatter? Why wasn’t any of Trayvon’s blood on Zimmerman’s clothing? He knew the answer right away. The blood coming out of the wound was quickly absorbed by his clothing. We know that Trayvon was wearing a light grey Nike sweatshirt (ME-8) and a dark grey Fruit of the Loom hooded sweatshirt (ME-12). That’s two barriers that absorbed the blood. 

What about the lack of gunshot residue on the hand that fired the gun? Could this mean that someone else was involved? Of course not. In the case of a revolver, the drum holding the bullets revolves each time the gun is fired. The “silo” that holds each bullet is open on both ends. As the bullet fires, the drum rotates to the next bullet and, like a rocket, emits whatever is left out the back end, causing residue on the hand in the form of spent gunpowder, gunpowder that wasn’t ignited, metal flakes and possible burns. In the case of a 9mm like Zimmerman’s, the slide most likely prevented residue from shooting out the back because there was no escape route. Whatever there was got ejected with the spent shell casing, out and up the right side.

My source is familiar with the type of holster Zimmerman had. If you look at the above photograph, you can see the Velcro. What you cannot see is the Velcro on the other side and the metal clip that holds it to his waistband. The clip slides over the waistband and the holster is worn inside the pants, between the pants and underwear. That’s what keeps it from shifting around and, most of all, conceals the gun from view. The following photograph shows Zimmerman’s holster with the clip attached. It would be way too flimsy to wear on the outside waistband because there’s no strap or any other barrier to hold the gun in place; nothing to keep it from falling out of the holster. I realize he’s left-handed, but there’s a good possibility he’s ambidextrous, meaning, he could shoot the gun with his right hand. With this in mind…

In his on-scene reenactment the following day, Zimmerman demonstrates how he pulled the gun out of his waistband and managed to shoot Trayvon, but his explanation is next to impossible to perform. Study the next picture. It looks plausible, but it’s not. At this point, he has the gun pulled and he’s trying to position it to fire. His left arm represents Trayvon’s. He’s showing the investigators how he pinned Trayvon’s arm under his and was able to contort his arm enough to pull the gun out of its holster. In real life, he would have to have bent his elbow, but in his world, he did not. Somehow, he managed to keep Trayvon’s arm locked tight, pull his gun, move his arm into position and fire directly into his victim’s heart. What incredible aim!

Let’s just assume for a second that Zimmerman played The Amazing Rubber Boy at carnival sideshows around the country and this is the truth. OK, downright impossible, but let’s give him the benefit of the doubt. Wow, maybe he’s a hero after all. Except for one small, but incredibly huge detail. You see, Zimmerman admitted that he wore his holster on his back right hip. The next photo clearly shows where it was as he described it to investigators. It appeared to be above his back right pants pocket.

This is extremely problematic for two reasons.

• He had to partially lift his right backside (that means butt cheek, folks) in order to pull the gun out of its holster. That’s tough to do with someone sitting on you.
• If this is true, as his very own testimony to police demonstrates, there is absolutely no way that Trayvon could have seen that gun if it was holstered, unless he could see through belly fat. This basically proves that Trayvon never spotted the gun to begin with during this ‘so-called’ wrestling match and never went for it, or else it’s the obvious. He did see it because Zimmerman had it drawn all along.

This leads me to one final thought to ponder…

Near the end of his reenactment, Zimmerman tells the investigators that after he shot Trayvon, he continued yelling, “Help me! Help me… I need help,” as he spread the dead boy’s arms out and away from his body. 

By now, we know that Trayvon’s arms were beneath him when authorities arrived. Most importantly, we know from listening to the 911 recordings and from witness’s testimony that once the shot was fired, all screaming ceased immediately. There were no more cries for help. It was Trayvon’s cries we heard. 

The Kel-Tec PF-9

There are different views making the rounds on the blog and forum sites regarding the weapon George Zimmerman used to kill Trayvon Martin. What makes it click, so to speak. To help clarify this and allay future confusion, please watch the two following (short) videos on the Kel-Tec PF-9.

In the first video, the shell casings on the gun eject up and to the right, with not enough force to do any real harm. You can clearly see the casing trajectory and get an idea of the speed of the 7 shots in the clip. This particular gun is a locked-breach, semi-automatic that needs to be primed initially. This would be of significance because it could mean that either Zimmerman always kept it primed, which is unnecessary, or he primed it before encountering Trayvon Martin.

The 9mm pistol has an automatic hammer block safety, which is not the same as a trigger lock safety that stops the trigger from being squeezed. A hammer block is similar to a firing pin block that prevents the hammer from contacting the firing pin by utilizing a safety latch. With the Kel-Tec, there is no lock or latch. What keeps the gun from firing is simple. The hammer can only contact the firing pin by pulling the trigger. Yes, that does mean that it’s always ready to fire as long as the chamber is primed. 

Nit-Picking Nit-Writ

This article will focus on the writ of prohibition filed by George Zimmerman’s defense attorneys, but before I do that, I’ve got to get something off my chest. It’s something I haven’t read much about elsewhere and it’s been bugging me in subtle ways for several months. As far as I’m concerned, it gets to the heart of the matter and why any motion to dismiss (in lieu of SYG) may be problematic for the defense.

I think most people will agree that Zimmerman has given several conflicting accounts of what transpired on February 26, the night Trayvon Martin died by a perfectly placed gunshot wound to the chest.

While his imagination has run wild, there’s one part of his stories that has remained consistent. He prefaces each and every 911/non-emergency call with, “We’ve had some break-ins in my neighborhood…” or words to that effect. Why does he start each one with that statement? Is it an excuse for what may transpire before the police arrive? Cover your butt? Let me tell you why I did it, in other words, by setting up his version du jour. In my opinion, it lays down a foundation as either of two things. Or both.

• He criminally profiled Trayvon, which is what the State claims, and he knows it.
• There was premeditation. By premeditation, I mean, as soon as he spotted the boy, his mind clicked into some sort of mutated high-gear attack mode and that’s when he began to stalk his prey with a vengeance. They always get away. NOT THIS TIME. In my book, it’s malice prepense, or malice aforethought — premeditation, pure and simple. 

Whether he intended to shoot Trayvon or not, he began a deadly game of cat and mouse. A killer cat pseudo-cop. Have gun, will shoot. And he did just that.

§

If you’ve ever seen video footage of babies falling out of chairs, they always look around. If someone is there, they immediately begin to wail and wait for mommy or someone else to run over and comfort them. If no one is there, they shrug it off and continue going about their business, climbing back up for more fun. Of course, I mean this only when there is no real harm done. It’s human nature and we learn at a very early age how to gain sympathy. In George Zimmerman’s case, he’s lived this way all his life. Someone has always been around to comfort him, and he’s forever gotten away with everything. He reminds me so much of Casey Anthony in the sense that her mother, Cindy, let her get away with murder. Don’t ask me if I mean that figuratively or literally. 

Zimmerman handily dismissed the first judge, Jessica Recksiedler, and he’s working on another. To be fair, I believe the motion to remove Recksiedler was Mark O’Mara’s idea, and he seemed to be careful when he constructed the recusal motion, just in case he needed to do it again.

Uh oh, he did it again.

This time, it was due to the “scorching” language the new judge, Kenneth R. Lester, Jr., wrote in an order denying bond after he discovered Zimmerman and his wife lied in court about a large sum of money they had in an account she only acknowledged existed. She denied knowing how much was in it when, in fact, she knew it was more than $130,000. There was also the issue of a tucked away passport they both failed to mention but openly discussed in coded jail house phone calls to each other prior to the initial bond hearing.

Oh my, judges do not like to be lied to, no matter how many inane explanations a defense attorney can conjure up.

Granted, the judge’s wording was quite tough, but did it reach the plateau that separates a legal reprimand from a personal one? It depends on which side of the fence you live on. Actually, it depends on what benches the three appellate judges sit on. That would be judges C. Alan Lawson, Jay P. Cohen and Kerry I. Evander.

After Lester revoked Zimmerman’s bond, the defense filed a new motion to set bond. Of course, the State objected, but in the end, it was granted to the tune of $1,000,000. In his ORDER SETTING BAIL, the judge noted that:

… the Defendant did not offer any explanation of or justification for his deception that was subject to cross examination… As noted, the Defendant spent a substantial portion of the hearing presenting evidence relating to self-defense in an effort to counter the State’s case because, in the initial order, the Court characterized the State’s case as “strong.” Notably, at the initial bond hearing, this Court had only limited evidence; to that point, the State showed the Defendant had shot and killed Trayvon Martin. There was other evidence presented through the probable cause affidavit and the testimony of Dale Gilbreath, an investigator with the State Attorney’s Office, that the Defendant’s actions were imminently dangerous to another and that he acted with a depraved mind regardless of human life. The Defendant certainly indicated through cross-examination that he acted in self-defense, but he put forward no evidence of such. As a consequence, this Court found as a preliminary matter that the evidence against the Defendant was “strong.”

The order further stated that:

Since the June 29, 2012 hearing addressed whether to reinstate bond was not an Arthur hearing, the presentation of evidence attacking the State’s case is of limited relevance at this stage of the proceedings… The actual questions before this Court at this time are: is the Defendant entitled to bail when he presents false testimony at a prior bond hearing and what recourse there is when the Defendant has shown blatant disregard for the judicial sysyem.

In other words, the judge maintained throughout that the reason he stated the evidence against the defendant was strong was because the defense offered up nothing substantial to prove otherwise up to that point, and since the defendant lied to the court, was granting bail the proper decision? The argument that Zimmerman claims in his PETITION FOR WRIT OF PROHIBITION isn’t worth the paper it’s printed on:

There was little evidence regarding the strength of the State’s case at the initial bond hearing other than the bare-bones probable cause affidavit… and the testimony of State Attorney Investigator Dale Gilbreath, a witness called by the defense… Gilbreath acknowledged that the State had no evidence to contradict the conclusion that Trayvon Martin was the aggressor and threw the first punch and no evidence to contest that Mr. Zimmerman was headed back to his car when Mr. Martin attacked him.

Herein lays the problem, whether you see it or not. While the writ of prohibition does make mention of the judge’s strong language, the rest of it is filled with smoke and mirrors. Why, you may ask? Because it doesn’t stick to the matter at hand, as I clearly pointed out above. The writ reads more like a motion for dismissal.

Granted, the judge did make strong statements, but the defense virtually ignored the reasons why. The fact remains, George lied, whether by remaining silent as his wife directly lied to the court, or by proxy. By that, I mean he authorized his wife to lie. Sadly, the writ includes the issue over his wife being charged with perjury. Zimmerman and O’Mara blame it on the judge, who mentioned it in his bond revocation order. Well, she did lie! She did break the law! Is that the judges’s fault? No, but Team Zimmerman thinks so.

Getting back to the June 29 bond hearing, O’Mara deviates from the truth in his writ:

On June 29, 2012 a hearing was held on Mr. Zimmerman’s Motion to Set Reasonable Bond. At this hearing, Mr, Zimmerman presented evidence… in support of his claim of self-defense. This tidal wave of evidence…

A tidal wave of evidence? In his later Order Setting Bail, Judge Lester noted that:

Argument by counsel is not evidence.  See e.g. Wheeler v. State, 311 So. 2d 713 (Fla 4th DCA 1975) (noting that counsel’s opening statement is not evidence).

In plain English, it means that this tidal wave of evidence was nothing more than dirty bath water going down the drain. To clarify, the evidence was presented by O’Mara that day, not by the defendant. Sadly, the defense was aware of that, too, before it wrote the writ. 

ON COURT ETIQUETTE AND ETYMOLOGY

The writ of prohibition states that:

The court chose language in its July 5, 2012 Order to describe the Defendant in ways that reflect the court’s opinion of Mr. Zimmerman’s character as much as his conduct. In its Order, the trial court said, “[u]nder any definition, the Defendant has flouted the system.”

Ouch! Poor Zimmerman threw a pity party over it because:

“Flouted” is defined at Merriam-Webster.com as “to treat with contemptuous disregard; to indulge in scornful behavior.”

In Zimmerman’s case, the court was correct in that assessment. He did flout the system. It continues…

The court went on to say that, “[t]he Defendant has tried to manipulate the system when he has been presented the opportunity to do so”… and again that “… it appears to this Court that the Defendant is manipulating the system to his own benefit”… The court also accused Mr. Zimmerman of showing “blatant disregard for the judicial system.”

The strange thing about the above statement is that every quote by the court is true. Interestingly, one of the defense team’s only ways to counter the court’s language is to camouflage it with claims of what transpired the night of February 26, which really has no bearing on the writ. Meanwhile, the defense laments that:

The court completely ignored Mr. Zimmerman’s voluntary disclosure of the alleged wrongdoing and failed to acknowledge Mr. Zimmerman’s surrender of those donated funds to his lawyer…

The problem is that Zimmerman was caught with his grubby hands in the cookie jar and something tells me he’s always been a sneaky little bastard, pardon my language, who immediately apologizes when he gets caught. See? All better. This is the type of creep who will admit to nothing if he gets away with it, and the more and more we get to know him, the more we recognize it as one of his strongest traits.

I can go on and on citing the examples the defense used in attacking the judge. I can write about harsh language the judge used in his bail order, but consider what he also wrote:

The State notes that his stories changed [with] each retelling, but on the surface he should be deemed to have been cooperative. However, he clearly understood that he was being investigated for committing a homicide and, while he believes that he was justified in his actions, there has been nothing presented which indicates that he was misled into believing that he would not be charged with a crime. Contrary to being betrayed, the Defendant received normal, reasonable treatment and was granted reasonable bail.

That sounds fair to me, but Zimmerman disagrees:

Of particular relevance in the instant case is the legitimacy of Mr. Zimmerman’s belief that the trial court has prejudged his guilt regarding the alleged (by the trial Judge) violation of Florida Statute Section 903.035(3), and how it may carry over to guilt in the underlying second degree murder case.

The way I look at this is no different from any other scolding. Just like parents disciplining their child, they get over it and move on. My God, if parents held grudges, how could they ever treat their children fairly? Even O’Mara admitted when questioned during his writ of prohibition news conference that Judge Lester is a professional and fair. Basically, he contradicted his writ.

I am convinced that this judge can proceed from here and fairly preside over the entire George Zimmerman case. In his ORDER DISMISSING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, Lester made it clear that the DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE was legally insufficient. He further stated that:

The Defendant moved to recuse Judge Recksiedler on the basis of Fla. R. Jud. Admin. 2.330(d)(2), which mandates recusal when a judge is related to an interested party… [The] Defendant also argued language associated with Fla. R. Jud. Admin. 2330(d)(1). However, in an abundance of caution and based on the “totality of the circumstances,” she recused herself. This would indicate that her recusal was, in fact, based upon Fla. R. Jud. Admin. 2.330(d)(1), making this a successive motion under subsection (g) of that rule. Should that be determined, this court is prepared to rule on the facts alleged in support of the motion.

What that means is simple. The lower court is ready to show the higher court what this writ may be all about. Uh huh. Judge shopping.

Zimmerman: Let's Pester Lester. Lester? Make Him Fester

There are two schools of thought now, since the press conference held by George Zimmerman’s attorney, Mark O’Mara. In it, he announced that a writ of prohibition will be filed at the appellate level against Judge Lester. This will stop everything in its tracks, including Zimmerman’s desire to leave Seminole County.

The judge can do one of two things. He can acquiesce by stepping down, washing his hands of the mess, or he can stick to his guns and fight it like he said he would be willing to do in his order denying the recusal motion. Personally, I would fight it, but my reasons are selfish. Make Zimmerman and O’Mara squirm. Delay this mess and keep Zimmerman bottled up in Seminole County — precisely where he doesn’t want to be. After all, O’Mara did say that his client “really has to live as a hermit, unfortunately.”

He said the poor boy is living in fear and running out of money. Great! Add it all up and it’s nowhere near the split second of fear Trayvon Martin felt while staring down the barrel of a gun.

I’m going to go over the writ with a fine-tooth comb when it is published. I will add my findings here or on a new post, but just remember one thing that O’Mara acknowledged when asked. He said that he thinks Lester is a fair judge. That in response when questioned about retribution if he’s denied the writ and remains on the bench. In my opinion, it contradicts the basis of the writ. Which one is he, Mr. O’Mara? Fair or unfair? You speak with forked tongue, methinks.

This is what I wrote on my August 5 post. It explains the writ of prohibition and what happens from this point on:

THE WRIT OF PROHIBITION

According to The Florida Bar Journal, “A writ of prohibition enables an appellate court to prevent a lower tribunal from further exercising jurisdiction in an action. Generally, it cannot be used to remedy an act that has already happened.” Whew! Relief, right? It’s not quite that easy.

While a petition for writ of prohibition “is generally used to challenge the denial of a motion to disqualify the judge of the lower tribunal,” it is also “the appropriate method for forcing a lower tribunal, including an administrative agency, to dismiss a matter for lack of jurisdiction.”

In his order, Judge Lester did leave open the option of argument at the appellate level to establish whether the motion to recuse him was the first or second motion to dismiss the trial judge, but I wouldn’t bet the farm that the higher court would rule Zimmerman’s way. As a matter of fact, that’s not even close to being the crux of the perplexing quandary he’s in. It’s…

FLORIDA SUPREME COURT RULE 9.310.

Let’s just say that, pursuant to Florida Rule of Appellate Procedure 9.310:

RULE 9.310. STAY PENDING REVIEW

(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.

(b) deals with exceptions, such as money judgments and public officials. (c) pertains to bonds, (d) with sureties, and (e) with duration, and none of them apply. But if you move on to (f), and combine it with (a), we hit pay dirt.

(f) Review. Review of orders entered by lower tribunals under this rule shall be by the court on motion.

What’s that mean? It’s quite simple, actually. Remember O’Mara’s words to Pipitone, “seeking a stay of all other matters…”?

That’s right! In order for the defense to seek that stay, they must go through the same court, “which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.” “Review of orders entered by lower tribunals under this rule shall be by the court on motion” actually seals the deal. A stay motion would be filed in Lester’s court and he would have to move to agree to it. Would he? Oh, probably, but in the meantime, like I said, the show must go on. While filing an appeal, the defense can soldier on with their motions and the judge can continue to write orders. Unless. of course, the judge rules on a stay. In which case, poor, poor George will stay in Seminole County for months and months to come, gnawing at the bracelet that will stay on his ankle.

One final thought on this story… Mr. O’Mara said that we are in unity that George Zimmerman’s nose was broken. NO SIR, IT WAS NOT! SHOW ME THE PROOF!

I Can't Get It Out Of My Head

I’ve owned a lot of MGB-GTs over the years. If I could ever love a car like a woman, that would be it. In the early 70s, I owned a red MG like the one in the above picture, wire wheels and all. Late one night, I was cruising home — well above the speed limit — on a winding country road. I was as sober as a judge. Suddenly, I lost control. The car swerved left, flew up an embankment, and flipped several times before coming to a rest in an upright position in a cow pasture. Why none of the wooden fenceposts I took out came through the windshield is beyond me. I saw them, and I distinctly remember watching the windshield pop away, with the open field of dirt and grass coming perilously close to my face as the car rolled. My skull banged into the unpadded headliner like a soccer ball bouncing wildly inside an old Whirlpool dryer. 

When it was over, I climbed out of the now demolished vehicle and hobbled over to the single-lane road, hoping someone would come. It was probably close to midnight. Within minutes, I heard an approaching vehicle and as it neared me, I could see I was, quite literally, drenched in blood all the way down to my knees. With my feet planted firmly on the paved road, I stood my ground, waving my arms in the air. There was no way I was going to let that car get around me. Thank God, they stopped.

Did I think I was going to die? No, I don’t think so. Did I wonder if I was more injured than I felt? The thought probably crossed my mind. What I do know, though, is that I never lost consciousness and I never panicked or overreacted. 

When I got to the hospital, I remember getting a head x-ray at some point. In what order, I can’t say, but it wasn’t until the emergency room doctor examined me that it was discovered what the source of all the blood was — a quarter-inch cut just above my right temple. I may have looked like I was near death, but I wasn’t. Of course, the doctor pulled a few shards of glass out of my scalp and I continued to do so for weeks and weeks after the accident. I was banged up quite a bit, but overall, I was in good shape. No concussion or any significant damage to speak of.

Oh, what I’d give to own another red MGB-GT…

But that’s not my point. I think it’s obvious to everyone that any type of cut to the head will produce a lot of blood, and in most cases, it looks worse than it usually is. That’s my point, and it’s the way I feel about George Zimmerman’s injuries the night of the shooting. He looked worse than he was and it wasn’t even close to how awful I looked the night of my wreck, and to be perfectly honest, the fear of death never crossed my mind. It did the next day, after I saw what was left of my car and I realized how close I came. Luck or God or something was on my side that fateful night and, to this very day, the experience is still quite vivid in my mind.

— § —

Below are a series of photographs of George Zimmerman taken inside the Sanford Police Department the night of the shooting. While I agree there was some sort of scuffle, I do not feel it ever reached a level where it was life-threatening for anyone until the gun was introduced. At the same time, I understand that we all have different pain tolerances. There is also a problem with when to say when. By that, I mean I wouldn’t expect Zimmerman to be beaten to a bloody pulp before retaliating. However, at what point should a person say enough is enough? When is the line drawn?

Does this look like a man with a broken nose? Does the back of his scalp reflect someone whose head was bashed into a sidewalk over a dozen times, as he told Sean Hannity? Is this the face of a man who, moments earlier, was teetering on the edge of death?

These are some of the questions that will arise during the ‘Stand Your Ground’ hearing. While I don’t see the types of injuries Zimmerman said he sustained, what do you think? In my opinion, these pictures reflect what any normal person in Trayvon’s situation would have done on that night. He would have STOOD HIS GROUND and fought for his life. De hombre a hombre. Until the gun was fired.

Statement in Response to Zimmerman’s Motion For Stand Your Ground Hearing

FROM TRAYVON’S PARENTS AND THEIR DEFENSE TEAM:

Let it be clear on the record, that we feel confident that the unjustified killing of Trayvon Benjamin Martin should and will be decided by a jury.   Many of the legal architects of the Stand Your Ground law have already opined that it does not apply in this case.  A grown man cannot profile and pursue an unarmed child, shoot him in the heart, and then claim stand your ground.  We believe that the killer’s motion will be denied during the Stand Your Ground Hearing, and as justice requires a jury will ultimately decide the fate of a man that killed an innocent child. 

There is only one version of this story that represents that Zimmerman was attacked by Trayvon Martin, and that’s Zimmerman’s self-serving version.  Everyone will agree that the killer’s credibility is clearly questionable.

Trayvon’s parents do not feel that this is a man that feared for his life the night he shot and killed their child, this is a man whose only fear is spending his life in prison.

Will it be that Appealing?

On August 1, Judge Kenneth R. Lester, Jr. of the 18th Circuit Court issued his ORDER DISMISSING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, citing the defense motion requesting his recusal as legally insufficient. That was no surprise to me, but it was to George Zimmerman. His attorney, Mark O’Mara, quickly told WKMG’s Tony Pipitone that, “We presented the motion. I think the motion was sufficient on its face. He made his decision. We’re going to review it and make a determination about whether or not to appeal it or accept it.”

I’m not surprised by O’Mara’s reaction, either, but what does it entail now? I mean, where can Zimmerman’s defense go from here? They can appeal it. Or should I say may? They may certainly appeal but it’s not all that simple, as O’Mara made clear in his second statement to Pipitone about what could happen next. The case, he said, “stays in limbo, unfortunately, for a while. We will be seeking a stay of all other matters pending until the appellate court decides, if we decide to appeal.”

The key word in the final sentence is seeking, as in “seeking a stay.” What that means is that it’s not attached to an appeal. It’s a separate request. While the appeal goes to the Florida Fifth District Court of Appeal, a stay on all other matters, quite literally, stays with the circuit court.

Here’s the first thing I thought of after learning of the judge’s decision and O’Mara’s reaction. What happens to Zimmerman’s GPS ankle monitor? What about the court order restricting him to Seminole County? I know he’s been complaining about it, and that his defense is prepared to file a motion to lift the restriction. If he files an appeal, doesn’t it put everything on hold? Well, no, but that doesn’t mean he and his team don’t have a lot of other complex things to think about.

There’s the issue of money, for instance. Filing appeals isn’t free. Just consider the time it takes to file paperwork at $400 per hour, not to mention other continuing work on the case. The appeal itself will take a long time to be heard. Where is Zimmerman’s money going to come from after his parents’ Website stops pumping oil? It will not last forever. The whole mess becomes a perplexing quandary. Does he bite the bullet and stick with Judge Lester, or does he go for the appeal with money he doesn’t really have?

WILL ZIMMERMAN DOUBLE DOWN?

The idiomatic verb form of double down means to double or significantly increase a risk, investment, or other commitment. Is Zimmerman willing to risk everything, which includes an impending money problem, in order to have a judge removed from his case? While waiting an indefinite amount of time for any other relief? Remember, filing an appeal does not mean an automatic win. The appellate court might just turn him down. Where would he go from there?

In the meantime, the defense still has the option to file an indigency motion if the well runs dry, but that means getting the JAC involved and O’Mara can kiss his $400 per hour good bye. You see, while the motion to appeal is at the appellate level, the show must go on, and Judge Lester would proceed as usual. So, while things seem like they are beyond reach for the defense, they really aren’t, but there are a number of catches. There’s the part about seeking a stay. Plus, by allowing this judge to decide motions, doesn’t it just confound the whole thing? Why let the same judge rule on anything if you want him off the bench? Right now! If O’Mara files an appeal, he’s pushed himself into a corner where he’s pretty much forced to file a stay. That’s a given, right? So what’s he supposed to do?

THE GOOD OLD INTERLOCUTORY ORDER

The Free Dictionary defines an interlocutory order as:

“Provisional; interim; temporary; not final; that which intervenes between the beginning and the end of a lawsuit or proceeding to either decide a particular point or matter that is not the final issue of the entire controversy or prevent irreparable harm during the pendency of the lawsuit.”

This could include the issue over the judge, but I doubt it, because, even though these types of actions are taken prior to trial, which fits in this case, and must be answered by an appellate court; there is a reluctance to make interlocutory orders unless the circumstances surrounding a case are serious enough to warrant such action. And they are restricted by courts because they don’t want to be tied up by piecemeal litigation. The clincher is that the lower court usually enters a final judgement, meaning a verdict, before it’s appealed.

If not that, then what?

THE WRIT OF PROHIBITION

According to The Florida Bar Journal, “A writ of prohibition enables an appellate court to prevent a lower tribunal from further exercising jurisdiction in an action. Generally, it cannot be used to remedy an act that has already happened.” Whew! Relief, right? It’s not quite that easy.

While a petition for writ of prohibition “is generally used to challenge the denial of a motion to disqualify the judge of the lower tribunal,” it is also “the appropriate method for forcing a lower tribunal, including an administrative agency, to dismiss a matter for lack of jurisdiction.”

In his order, Judge Lester did leave open the option of argument at the appellate level to establish whether the motion to recuse him was the first or second motion to dismiss the trial judge, but I wouldn’t bet the farm that the higher court would rule Zimmerman’s way. As a matter of fact, that’s not even close to being the crux of the perplexing quandary he’s in. It’s…

FLORIDA SUPREME COURT RULE 9.310.

Let’s just say that, pursuant to Florida Rule of Appellate Procedure 9.310:

RULE 9.310. STAY PENDING REVIEW

(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.

(b) deals with exceptions, such as money judgments and public officials. (c) pertains to bonds, (d) with sureties, and (e) with duration, and none of them apply. But if you move on to (f), and combine it with (a), we hit pay dirt.

(f) Review. Review of orders entered by lower tribunals under this rule shall be by the court on motion.

What’s that mean? It’s quite simple, actually. Remember O’Mara’s words to Pipitone, “seeking a stay of all other matters…”?

That’s right! In order for the defense to seek that stay, they must go through the same court, “which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.” “Review of orders entered by lower tribunals under this rule shall be by the court on motion” actually seals the deal. A stay motion would be filed in Lester’s court and he would have to move to agree to it. Would he? Oh, probably, but in the meantime, like I said, the show must go on. While filing an appeal, the defense can soldier on with their motions and the judge can continue to write orders. Unless. of course, the judge rules on a stay. In which case, poor, poor George will stay in Seminole County for months and months to come, gnawing at the bracelet that will stay on his ankle.

Yes, there’s been lots to ponder since Friday. I wonder what George thinks God’s plan is.

The "Gratest" Show on Earth

I’m in the middle of researching the obvious — whether or not it’s feasible for the Zimmerman camp to file a motion to appeal Judge Lester’s order yesterday, to not recuse himself. I will look deeply into the logistics of such a move, but in the meantime, I want to give my old (and original) blog a shameless plug. Please take a peek. Meanwhile, isn’t this case starting to grate on your nerves?

FROM THE GALLERY…

Who would ever do such a thing?

Judge Refuses to Recuse!

“The Defendant’s Verified Motion to Disqualify Trial Judge is hereby denied as legally insufficient.”

There you have it, folks. This is one time when George Zimmerman will not get his way.

(I’ve got a doctor appointment this morning. This just came over the wire and I had to put it up.)

Lester: No Judge to Rush

I could be wrong, but I do think it’s rather revealing that Judge Lester has taken his good old-time deciding whether or not he’ll step down from the bench. Granted, he’s been on vacation, but Zimmerman’s recusal motion was filed on July 13, well over two weeks ago, and as far as I’m concerned, the accused hasn’t had enough time to get nervous yet. He still thinks he’s the boss. Now, if I were in charge, I’d make him wait the full 30 days that’s allowed under the law before rendering a decision. Really rattle him. Then, I’d drop the bomb — that the judge has decided to remain on the case.

I’m not saying this because I expect Lester to be personally biased against the defendant. No, that’s hardly the reason. I just don’t think it’s right that George should get his way this time, like he’s been used to most of his life. Throw a tantrum. After all, he’s the one who lied to the court by ordering his wife to hide the truth. That means that he’s responsible for his wife facing a perjury charge. Now, he blames the court for it.

Even his attorney, Mark O’Mara, said his client lost his credibility. Soon after Zimmerman’s bond was revoked, he told Charlie Rose on CBS This Morning, “Judge Lester gave us all a very strong signal that he and he alone will run the courtroom and that everyone is going to tell the truth. So I’m certain that not only the Zimmerman family but all other witnesses that come before Judge Lester had better tell the truth and nothing but the truth if they’re going to be treated fairly.”

He readily accepted the judge’s fairness. Treat me right, I’ll treat you right.

According to a USA Today report, O’Mara said, “He [Zimmerman] should have jumped up and said she is lying. He should have done something, and he didn’t.”

I could go on and on with remarks made by Zimmerman’s own defense, but the fact remains, he lied and that’s all there is to it. O’Mara acknowledged that it would take a lot of work to regain the judge’s trust, and he admitted it was a huge mistake. He expected the judge to have a strong opinion. Rightfully so! This is nothing new, and it leads me to believe that, had the more prudent O’Mara prevailed, he would have worked out the messy kinks because he knows how much the judge and most in the legal field admire his honesty and professionalism. I believe the motion to recuse was Zimmerman’s idea, and his alone; just like taking command of his Website again. Not to mention his parents’.

Here’s the deal, in my opinion. Judge Kenneth Lester will “Stand His Ground” and remain seated. Why? Because Florida and federal law is on his side, and I don’t think he will relinquish anything to a punk, whether it’s “appealing” or not. He doesn’t strike me as a quitter.

According to The Law of Judicial Disqualification or Recusal, Florida Rules of Disqualification: Rule 2.330. Disqualification of Trial Judges, Zimmerman’s defense cites:

(d) Grounds. — A motion to disqualify shall show:

(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or

(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

I can clearly understand the first motion to recuse against Judge Reckseidler based on (d)(2), but will the motion against Lester stand on the merits of (d)(1)? On his motion against Lester, Zimmerman added:

(f) Determination — Successive Motions. — The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

This means if the judge denies the defense request, no explanation is to be given. A simple “NO” will suffice. End of story. Time to move on.

As I wrote in my first article, Why Judge Lester Will Refuse to Recuse, a defendant cannot simply lie to a judge and get away with it. If a judge cannot respond without showing any kind of opinion regarding said lie, what’s the court to do? Evidence proved Zimmerman lied and the judge responded with disdain. Lying in court is against the law, and if all a person has to do is lie to the judge to get him/her recused for voicing concern, it would be anarchy in the courtroom. This would mean that every time a judge cries, “May God have mercy on your soul” after a death sentence is pronounced, the defendant should get the case thrown out of court. Not guilty on a technicality. The judge voiced his opinion on the verdict and a personal belief in religion. Separation of church and state!

Now, we come to a matter of law. Let’s quickly examine Section 455 of Title 28 of the United States Code, Disqualification of Justice, Judge, or Magistrate Judge. The most important part of this section is that in order to warrant a recusal, the judge’s expressions of opinion about the merits of the case must have originated outside the case.

Held: Required recusal under §455(a) is subject to the limitation that has come to be known as the “extrajudicial source” doctrine [or factor]. Pp. 3-16.

The general rule is that a judge should be disqualified “where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding…” This pertains to a prior opinion, and that would mean Judge Lester would have to have had an interest in the case before it was assigned to him. Surely he heard about it in the news? That’s not relevant. (See: Liteky v. United States (92-6921), 510 U.S. 540 (1994).) Under Liteky, the judge is expected to form opinions based on what is presented during the proceedings, not before. Remember that a judge formulates an order based on case law, and each side presents its own case law examples. Such is the situation regarding this recusal motion and the state’s very own response.

If we go back to the Casey Anthony v. State of Florida case, we saw multitudes of examples where Judge Perry admonished Jose Baez. If ever there was a situation that appeared to be biased and prejudiced, that was the one. Had Ms. Anthony been convicted, would it have been overturned on appeal based on the less than cordial interaction between Perry and Baez? I seriously doubt it, and do you want to know why? Because, in the end, the defendant was found not guilty of murder. The End. If the judge showed any bias or prejudice toward the defendant or any of her attorneys, the jury failed to notice. Why? Because the system worked and it will work again.

Judge Lester is tenacious. He has no reason to relinquish the bench. He saw right through George Zimmerman from Day 1 and he will see him right through to the end. That’s my judgement. That’s my opinion.