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FROM GEORGE ZIMMERMAN TRIAL!!!

With Provenance

During the Casey Anthony trial, I sat on a cushioned seat, like the kind you’d find in a movie theater. The George Zimmerman trial, however, was not the same type of seating arrangement. We sat on uncomfortable hardwood benches the entire time, similar to the ones in an old Quaker church. I needed comfort! I dragged this into the courtroom every day. Many other journalists brought something in for their tushes, too.

This is the actual cushion I sat on during the trial. Here’s your chance to own a piece of American history…

BIDDING STARTS AT $12,000.00

(And I hope you know a parody when you see one, but this is the real cushion. I found it in a closet.)

THE BAD, THE GOOD, AND THE UGLY

Aging has its perks. It also has its disadvantages.

THE BAD

Three weeks ago, I was on my way home from taking care of a few things. A police car was following me. Uh oh, I thought, what could this be all about? I assumed he wasn’t after me, but I was wrong. He lit me up, so to speak. I pulled onto the nearest side street and parked along the curb. He got out of his car, lights still flashing, and walked over. At least he didn’t turn on the noisy siren.

“Good afternoon, Officer. What did I do?” I knew I hadn’t done anything, but I was a little apprehensive. I was slurring my words.

“Nothing. But your tag is expired.”

“It is? No way!” Hmmm… I thought about it.

“Yes, it is, and I checked it twice, just to be sure.”

“You know, my birthday was weeks ago and I don’t remember renewing it, but I never forget! I must have…” I always get one of those renewal forms in the mail. Usually, I go to the DMV office because they’re really nice and the wait is never too long.

He asked to see my license. He didn’t need my registration or insurance card. Heck, the registration was expired anyway!

“I’ll be back,” and he walked to his squad car right behind me. Just before he turned around, I mentioned why I was slurring, but he didn’t care at the time.

When he returned, he was holding a ticket and asked if I would sign it. Of course. He said he wanted me to go to the Seminole County Courthouse.

“Do you know where it is?”

“Of course! I went there every day when I wrote about the George Zimmerman trial.” That interested him. “But why do I need to go there to set a court date? My tag is expired and I’m guilty.”

THE GOOD

“Hold on. Hear me out. I want you to set a date there and then you’ll go to a different court where, if you renew your registration by then, within 30 days, I will have the ticket dismissed.”

“Yes, Sir, no problem!” And I was on my way. The next day, I drove to the tag office and renewed the registration. Good to go. Then, I drove to the courthouse where they set a court date: October 8, 2:00 PM.

§

Yesterday, I went to traffic court. There were some surly looking people, but most of them were ordinary folks, like you and me — if there is such a thing as ordinary. I hadn’t been inside a courtroom of any kind since the Zimmerman verdict. More importantly, I hadn’t had ANY problems with the law in God knows how many years. I think, with age, we tend to mellow out, and it’s a perplexing thought. I’ll get to that.

I had to wait in a line after several cases were called because attorneys were there to represent their clients. That deserves preferential treatment because time is money. Eventually, I got up in front of the judge and stated my name. The officer was there, he looked at my documents and nodded to the judge that all was in order. Dismissed!

All I had to do was sign my name on a document at the back of the courtroom. There was a short line, so I talked to one of the other officers after thanking mine for the favor and for spending his time doing so. I told the other officer about an experience, probably 25 years ago, when I was in court for some infraction and the judge lined all of the DUI people up to expedite their arraignments. No, I was not in that line. Suddenly, the judge reprimanded one guy and told him to leave.

“Do not come back here until you know how to dress appropriately in my courtroom!” I could see that he was wearing a sleeveless black t-shirt but, when he turned around to exit, it had art silk screened on the front that showed a drunk judge and some stupid drunk judge message spelled out, out of focus. Out the door, too.

The officer I told this story to told me one of his own. He had arrested a guy on a pot charge and he showed up in a t-shirt with a huge bright green marijuana leaf silk screened on the front with a message that simply said LEGALIZE POT!

§

Here’s the interesting thing about getting old. Or older. It’s not so good that my memory isn’t what it used to be. Oh, it’s not very bad yet, but… Two years ago, I wouldn’t have let the car registration slip my mind. The good thing about getting old is that, by now, most of us have learned how to respect people, and that includes the police. I was always respectful, but it’s certainly not like that with many of the younger generation. Look at the way police are treated! No, I’m not going to address bad cops or bad politicians or anything political. Period. Here’s what I think. This particular officer took one look at me and said to himself, he’s no threat. He looks harmless, and he gave me a break. Had I shown an inkling of attitude, I might have been paying the $113.00 fine and, maybe, court costs.

THE UGLY

Remember at the beginning I told you I was slurring my words? I told him the truth and he didn’t seem to care about it. You see, the Novacaine was wearing off. That was the day my front tooth (#7) broke at the gum line. Unfortunately, that’s another one of the drawbacks of getting old. Your teeth just ain’t what they used to be.

Once Upon A Time...

Once upon a time, Pudgie the Bear was skipping through the woods when Trigga the Tree Troll stopped him.

“Why are you running in my forest?” Trigga demanded, as one of his giant tree limbs stopped Pudgie dead in his tracks.

“I… I… I have every right to be here,” Pudgie quickly responded. “Why did you stop me?”

“Because these are my trees. You are robbing my forest of flowers, leaves, grass, mushrooms, berries, roots and nuts!”

“No. Not me!!! I like honey!” Pudgie cried, but Trigga wouldn’t relent. The young bear tried to fight his way out, knocking chips of bark all over the place. “I’m going to make compost out of you!”

“No you won’t,” Trigga replied, and just like that, his powerful limb lifted up and came smashing down; knocking the stuffing out of poor Pudgie’s body, sending it flying all over the place. 

§

Attorneys Natalie Jackson, center, Benjamin Crump, center right, and Daryl Parks, far right, representing the family of Trayvon Martin sit stoically as George Zimmerman’s not guilty verdict is read in Seminole circuit court in Sanford, Fla. Saturday, July 13, 2013. Zimmerman was found not guilty in second-degree murder for the 2012 shooting death of Trayvon Martin. (Gary W. Green/Orlando Sentinel/Pool)

After the verdict came last Saturday night and my journey was over, I was tired. From the very first article I wrote; from the very first hearing I attended to the very end, I put in a lot of hours. One of my friends asked me if I would be alright. How would I handle it now that it’s over? Would I be depressed? No, I answered. This is the life of a writer of true crime and courtroom drama. A climbing crescendo, long and winding, coming to a tumultuous climax and compelling completion is what it’s all about. Cut to the end. If we can’t deal with it, we’re in the wrong business. That’s just the way it is. Death becomes a way of life.

By Sunday morning, most of the civilized world that paid attention to the Trayvon Martin/George Zimmerman trial knew the outcome. All that was left to do was to discuss it, but not me. I needed a break. Throughout, there were multitudes of directions each and every one of us had taken — like a hundred road intersection — converging into a massive mess of a traffic jam. Which one of us had the right of way? I don’t know. I still don’t, although a jury of six women decided for us. Yield! Move on or get run over! I suppose I could write a lot about the verdict, but what’s done is done. To perpetuate the story is, to me, unbearable. I won’t let it dog me. 

The Pavlov’s Dog Affect

From the beginning of the trial — jury selection or voir dire — we were warned by the Court and deputies to turn off all cell phones or set them to vibrate. This included iPads and other tablets and devices. No noises would be tolerated in courtroom 5D. Even Siri became a serious problem. Initially, we were given two strikes — a warning, then an ejection. That changed after the second or third day when (then) Chief Judge Alan A. Dickey changed the rule. It was one of his final orders before leaving his position, which was part of routine circuit rotation. Judge Nelson wanted it to remain two strikes but, instead, it became one, you’re out, although someone in your news organization could replace you; however, if your replacement made a noise, it would be strike two and your outfit would be banished for good — to the media overflow room you go. 

Unfortunately, I heard dings, dongs, boing after beep and ring after cell phone song from the gallery. Out went a few journalists and members of the public, until the rest of us were conditioned to be scared to death. That’s a fact. For the remainder of the trial and days beyond, whenever I heard a digital noise of any kind, no matter where I was, I cringed. If I happened to be in the produce section picking out peppers when a cell phone pinged, I panicked. It was either mine or someone else’s and it meant immediate ejection from the courtroom. I called it PDSD — Post Dramatic Stress Disorder. It took some time, but I finally broke free and now feel safe when my phone barks.

Dog Eat Dog

This wasn’t my first go ‘round in criminal court. I was credentialed during the Casey Anthony trial. When journalists from all over the country and elsewhere began to come together at the courthouse for the Zimmerman trial, it was nice to see familiar faces again. We couldn’t believe it had been two years, but it was. After friendly hellos, hugs and handshakes, it was all business. Of course, there were plenty of new faces, too, from local news stations and major networks, including cable. 

It’s the nature of the business to out-scoop each other, so there’s always a competitive edge. There’s eavesdropping and lots of interruptions while talking to someone involved with the trial, as if their questions for Ben Crump seem more important than the rest. Generally, they’re not, but that’s the way it goes. Don’t get me wrong, most of the media reps are very nice, but there are a few egos that get in the way; more so from producers than from on-air personalities. Like what I discovered during the Anthony case, the more famous the personality, the nicer they seemed, and the more intrigued they were with local news people.

There was an emotional tie inside the courthouse and, most certainly, inside the courtroom. Aside from the actual trial, I mean between journalists. I could clearly sense that, after the strike rule went into effect, plenty of those people sitting on the media side would almost kill to get one more of their own in that opened up seat. They hoped and hoped a cell phone would accidentally go off, although everyone cringed when it did. We all knew it was to be expected. It’s the nature of the beast. Goody! Goody! The problem with me was that there were no replacements. I was the only blogger inside that room with credentials. Some may have resented that fact, but most didn’t. When I was asked who I was with, I proudly said, “Me!” I represented no one but myself.

Throughout jury selection and the trial, that’s the way it was. When the State rested, everyone’s attitude changed. Gone were the vibes that begged for someone’s phone to go off. There was almost a camaraderie among us. The end was near and we all sensed it. Once again, in a matter of days, we would be going our separate ways. Surely, Mark O’Mara and his defense team wouldn’t take long and we knew that, too. How did we know? Because most of us realized the State did not put on a good case. It was a letdown. Is that all there was? They sure didn’t prove anything beyond a reasonable doubt. Therefore, the defense wouldn’t need to put on much of a show. Besides, they had cross-examined the State witnesses very effectively.

With the last few days of trial at hand, what we had waited for and built up to was going to come down. A verdict was nigh and it would be over. Time to say good bye to those who cared enough. Some just packed up and left. They knew we would meet again at the next big one. Surely, there’s always a Jodi Arias out there to cover.

On the final day, last Saturday, I could feel the electricity in the entire courthouse. The building was supercharged. I asked Rene Stutzman, who covered most of the case for the Orlando Sentinel, if she could feel it, too. “Yes,” she responded. “Absolutely.”

I spoke to one of the administrators on a floor not associated with the trial in any way. She also acknowledged that her coworkers felt it, too. It really cut into their levels of concentration. Of course, some of that could have been attributed to protesters, but they didn’t come until the final three days and, even then, it wasn’t that many. No, this was a powerful trial; one that touched the entire area surrounding the courthouse.

As a final aside, I must say that Judge Nelson was one tough judge. No, I’m not going to humor your thoughts on bias, one way or the other. This has nothing to do with that. Comparing her to Judge Belvin Perry, Jr., Perry was a pussycat. He gave us an hour-and-a-half for lunch each day and there were lots of restaurants in downtown Orlando to choose from. Plenty of time to eat, in other words. Nelson, on the other hand, gave the jury an hour each day and if there happened to be any unfinished court business after they were excused, it cut into our lunch time. That meant less than an hour, generally, with NO restaurants nearby. Well, WaWa. Despite it being cold in the courtroom, I couldn’t bring perishables, so I brought MorningStar Grillers Prime or Chipotle Black Bean veggie burgers on a toasted English muffin. No butter. Plain. I heated them in the lunchroom microwave, where I ate almost every day with a handful of other journalists. Sometimes, we’d talk shop as I nibbled on fresh tomatoes and assorted fruit. Today, there are no more daily events to discuss among my peers, but I am sticking with the diet. Plus salad. Those veggie burgers grew on me, especially the Grillers Prime.

And in the end…

After nearly five years of writing about local murders, I hope nothing else like the last two cases comes along again. In the Zimmerman trial, one must understand the residents of Seminole County in order to grasp the verdict. It is a predominantly conservative Republican county made up of a mostly Caucasian population. Gun rights is an important issue. It is not a racist area, although it used to be many, many years ago, but never as much as the surrounding counties. Ultimately, the jury based its decision on the law and how it’s written; not so much on the absolute innocence of Zimmerman, as if he did nothing wrong. In the eyes of the law, Casey Anthony did not murder her daughter, did she? Or was it, more or less, because the prosecution did not prove its case?  

In the Zimmerman/Martin confrontation, it was the ambiguity of the final moments that cemented the verdict. All you need to do is to look at something else in order to figure it out. Take a DUI (DWI) traffic stop, for instance. If you refuse all tests — field sobriety and breathalyzer — and keep your mouth shut in the back seat of the patrol car, there’s hardly any evidence against you other than the arresting officer’s word. The less evidence a prosecutor has, the less chance of a conviction. That’s what happened here. There just wasn’t enough evidence. Without it, the jury could not convict George Zimmerman — not as presented by Bernie de la Rionda and his team. There wasn’t even enough for a manslaughter conviction, was there?

On the night of February 26, 2012, something horrible took place. Was it poor judgement or bad timing, perhaps? Was it both? Had Martin arrived at the Retreat at Twin Lakes only five minutes earlier, Zimmerman would have gone on to Target. Had Zimmerman only left the Retreat five minutes earlier, Martin would have walked safely home to watch the NBA All-Star Game. Who started it and who ended it can and will be argued about for years to come. I formed my own opinion, but I choose to move on now. A verdict has been rendered. Let the rest of the media hound on it. They get richer and richer off the story and I never made a dime. In the end, trust me, Trayvon Martin did not die for naught.

As for me, what does my future hold? I may re-stuff Pudgie the Bear and write fiction. Yup, you know… Once upon a time, we had characters like the Lone Ranger. In those days, good guys always wore white and bad guys never got away.

George Zimmerman is congratulated by his defense team after being found not guilty, on the 25th day of Zimmerman’s trial at the Seminole County Criminal Justice Center, in Sanford, Fla., Saturday, July 13, 2013. (Joe Burbank/Orlando Sentinel/POOL)

Cross-posted on the DAILY KOS

The Court of July

The Gregorian Calendar has been the most widely accepted date-keeping standard since 1582. It means that, in most parts of the globe, July 4 is just another day of the year. In the United States; however, it’s not. It’s our birthday and we love to celebrate. Yankee Doodle. Feather in the hat. Macaroni salad. It’s a time for festivities of all kinds, including some of the most impressive fireworks displays the world has ever seen. We call it Independence Day because it’s the date signed on one of our nation’s most cherished symbols of liberty, the Declaration of Independence from the British Empire in 1776. This is a holiday to eat apple pie. It’s also a great day to munch on a hot dog while taking in an American staple — a good, old fashioned baseball game. How much more patriotic can we get than that… baseball, hot dogs and apple pie? Well, we can celebrate the US Constitution and our system of justice. That’s a good part of what it’s all about. Many of us saw it in action during the Jodi Arias trial and, before that, Casey Anthony. Now, there’s George Zimmerman. Charged in the February 26, 2012 shooting death of 17-year-old Trayvon Martin, his second-degree murder trial began began June 24.

Speaking of baseball and Casey, and I’m not referring to the 1888 Ernest Thayer poem, Casey at the Bat, July 5, 2011, was the day Ms. Anthony received her declaration of independence from the justice system. Not guilty. While most Americans have been able to enjoy an extended four-day weekend this year, death took no holiday in Seminole County on July 5. Court was in session. Ironically, two years later to the date of her verdict, the State of Florida rested its case against Mr. Zimmerman. While some might call this the 7th inning stretch, although the defense did put two people on the stand, Zimmerman’s mother and maternal uncle, I do not. Sadly, I have heard lots of people in the courthouse and elsewhere refer to trials almost like sporting events. Who won this day and that day. Points made in the courtroom are points on a scoreboard. Most certainly, any time a matter of life and death is brought into an equation, it’s not a game. Young Martin is dead. He will never play another game of baseball. Zimmerman might not, either. Nelson’s courtroom is not a stadium and she is not an umpire calling balls and strikes. We are not eating Cracker Jacks in the gallery. Did I say Cracker?

What we have is the Constitution in action. The right to a fair trial. Part of our Declaration of Independence guarantees that we are all equal.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

There is no doubt that the United States is still a land of golden opportunity. Everyone has a chance to follow the path to success. We see it in action every day, but in some situations, it’s not really equal; not that it has to be, because we do not live under any kind of Utopian rule. We do not live “where nothing in society will belong to anyone, either as a personal possession or as capital goods, except the things for which the person has immediate use, for either his needs, his pleasures, or his daily work.”

That statement is attributed to French thinker and novelist, Étienne-Gabriel Morelly. Where am I going here? Proof positive of the American system at work. Look at Jose Baez, speaking of the Casey Anthony case. He walked into a gold mine. What was he before she came along? An ambulance chaser? A DUI lawyer? While I am making no accusations against his background, Casey got his name from two women sitting in a holding cell at the Orange County Jail. The rest, they say, is history. Mark O’Mara, on the other hand, worked very hard throughout his career as an attorney to get to this point. He earned it through many long and arduous hours. Granted, Mark NeJame referred Zimmerman to him after turning him down, but he wouldn’t have done so had he given a thought that O’Mara’s solid credentials were less than stellar. While some of you may wonder why I bring this up at all, let me remind you that you can read about daily trial events in the newspaper. You can see and hear all about it online, on radio and on television. What I am is a pundit; a purveyor of private opinion made public. It’s my own brand of commentary, and here some of it goes…

§

A very powerful conservative blog, strongly favoring Zimmerman, splintered over O’Mara. Some believed his intention, all along, was to sabotage his client. Well, look at him now. He has done a splendid job dissecting many State witnesses, neutralizing some while turning others into Defense allies. This is the “mark” of a great attorney in the making, although I knew all along it was in him. He’s a great orator and thinks fast on his feet. There aren’t too many in the field of law that can pat you on the back while stabbing you in the gut — and — at the same time, keep you smiling. That’s O’Mara. That’s class, no matter what his courtroom adversaries and the public may think. His partner, Don West, on the other hand, is blunt and direct; straightforward to a fault. He is quite effective, too. In my opinion, they complement each other. West goes in for the kill and O’Mara soothes the pain. Or is it the other way around? O’Mara numbs you first. Either way, it’s a talented team.

But has it always been effective? No, it hasn’t. Take the case of Ms. Rachel Jeantel, the State’s reluctant key witness. She was the last person who spoke to Martin before his death, other than Zimmerman. That is a matter of fact that cannot be disputed. The problem lies with her testimony, and what is left in its wake is quite complex. It falls into two vastly different camps; the thems that believe her and the thems that don’t. Granted, she lied under oath on more than one occasion, so why should anyone choose to believe her now?

Witness Rachel Jeantel gives her testimony to the prosecution during George Zimmerman’s trial in Seminole circuit court in Sanford, Fla. Wednesday, June 26, 2013. (Jacob Langston/Orlando Sentinel)

In order to understand Ms. Jeantel, one must consider her style in the courtroom, not just her substance. Let’s say she will never be a diplomat. Nor will she ever be a United Nations interpreter, although she is multilingual. English is just one language and it’s not her first, obviously. De la Rionda established that she grew up in a Haitian family speaking Creole. From what I’ve learned, she lives in a ghetto section of Miami. She and her friends understand urban-speak. She knows hip hop. She comes from a different world of imperfect grammar and Ebonics, living in a different generation; under separate rules of engagement. Ghetto people of all generations have no respect for the police. If you must ask why they disrespect law enforcement, then you know nothing about inner-city culture. Why then, would anyone, in all seriousness, ask her why she didn’t call 911 after Martin’s phone disconnected? So the police would come banging at her door to interrogate her? We’re not talking about someone with visions of white knights in shining armor, anticipating that “help is on its way.” That is so delusional in her world where whites, let alone knights do nothing for her. Is it any wonder why she was adversarial?

What we got was a frightened 19-year-old girl, 18 at the time, who lied about going to the hospital because she didn’t want to see Trayvon laid out dead in his coffin. She lied under oath because she was questioned in front of the boy’s mother. She didn’t want to hurt or offend her. Was it wrong? Yes, but it shouldn’t have discredited all of her testimony. Admittedly, she also lied about her age, but she said she did so because, as a minor, she knew she could deflect the media from herself to her mother, meaning there could be no direct contact.

Where she had me at hello was when she told the Court that Martin called Zimmerman a “creepy ass cracker.” Who would possibly make something like that up to hurt the person she cared so deeply about? Immediately, one would think of anti-racism, like antimatter. Pot? Call the kettle black. Profiler profiling profiler. West jumped on it upon cross-examination.

“Do people that you live around and with call white people creepy ass crackers?”

“Not creepy,” replied Jeantel, “but cracker, yeah.”

“You’re saying that in the culture that you live in — in your community — people there call white people crackers?”

“Yes, Sir.”

This was, in my opinion, an attempt to transfer the racial profiling onus from Zimmerman to Martin. Did it work? The answer is two-fold. No and no. The term Florida cracker came from the cowboys that cracked their whips to herd cattle because they didn’t use lassos. That’s one version. There’s another theory for its usage. Slave foremen in the antebellum South may have used bullwhips to discipline slaves. Hence, they cracked the whip and became known as crackers.

Without going into fine detail over what Jeantel said on the stand, I believe that the longer West crossed her, the more credible she became. He overdid it. Call it overkill. My father put it best when he later told me, “He made the sale, and then he bought it back.”

Incidentally, my father is quite conservative, but doesn’t support either side. What’s your opinion of Jeantel? 

§

Now, we’re left with several problems. One is that the State has rested. Did it prove the defendant’s guilt beyond a reasonable doubt? At this point, I would have to say no, but I do feel that the general consensus among media types is that Zimmerman is guilty of something. The man is, by no means, innocent of everything. The State did cast him in a very negative light, but will it be enough to convict? In my mind, he was a creep the night of February 26.

However…

Looking at (1) FLJI 74 MURDER - SECOND DEGREE

3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

While some may conclude that Zimmerman was depraved when he followed Martin, it’s not as simple as that.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an indifference to human life.

This was the major contention on Friday after the State rested. This was what O’Mara fought vehemently for in his JOA, a Judgement Of Acquittal, argument. What Zimmerman did had nothing to do with ill will, hatred, spite or an evil intent. The judge disagreed and said the State had presented enough evidence for the trial to continue. The jury will return on Monday morning. The State will now cross-examine and we will see how they do.

Some people have wondered during court breaks whether this case would have made it to the courtroom had it not been for Civil Rights leaders. Is that true? I don’t know, but were the original powers that be too quick to jump the gun (no pun intended) and take one person’s perspective as the truth; the shooter, of all people? We cannot simply overlook the accounts of all witnesses, and that should have been enough for an arrest then, not 45 days later. Ultimately, it’s all the victim’s family wanted out of this — a day in court. For that reason alone, I do not believe there will be riots at the courthouse if Zimmerman is found not guilty.

In my closing argument today, I will say that the State did not prove its case. With the possibility of a jury in doubt and the Defense lurking about, waiting to pounce, a conviction on second-degree murder is a long shot. This defense team is very strong and smart. I mean the entire team. In my opinion, it is O’Mara’s trial to lose, and I doubt he will, although I will not predict whether the six-member panel will contemplate a felony manslaughter conviction. There’s no doubt in my mind, something went horribly wrong that night. Just remember, this is not a game, the judge is no one’s teammate, and neither is the jury; not even among themselves, yet the verdict must be unanimous. No timeouts for them. There is no score card.

The Court of July

The Gregorian Calendar has been the most widely accepted date-keeping standard since 1582. It means that, in most parts of the globe, July 4 is just another day of the year. In the United States; however, it’s not. It’s our birthday and we love to celebrate. Yankee Doodle. Feather in the hat. Macaroni salad. It’s a time for festivities of all kinds, including some of the most impressive fireworks displays the world has ever seen. We call it Independence Day because it’s the date signed on one of our nation’s most cherished symbols of liberty, the Declaration of Independence from the British Empire in 1776. This is a holiday to eat apple pie. It’s also a great day to munch on a hot dog while taking in an American staple — a good, old fashioned baseball game. How much more patriotic can we get than that… baseball, hot dogs and apple pie? Well, we can celebrate the US Constitution and our system of justice. That’s a good part of what it’s all about. Many of us saw it in action during the Jodi Arias trial, and before that; Casey Anthony. Now, there’s George Zimmerman. Charged in the February 26, 2012 shooting death of 17-year-old Trayvon Martin, his second-degree murder trial began began June 24.

Speaking of baseball and Casey, and I’m not referring to the 1888 Ernest Thayer poem, Casey at the Bat, July 5, 2011, was the day Ms. Anthony received her declaration of independence from the justice system. Not guilty. While most Americans have been able to enjoy an extended four-day weekend this year, death took no holiday in Seminole County on July 5. Court was in full session. Ironically, two years later to the date of her verdict, the State of Florida rested its case against Mr. Zimmerman. While some might call this the 7th inning stretch, although the defense did put two people on the stand, Zimmerman’s mother and maternal uncle, I do not. Sadly, I have heard lots of people in the courthouse and elsewhere refer to trials almost like sporting events. Who won this day and that day. Points made in the courtroom are points on a scoreboard. Most certainly, any time a matter of life and death is brought into an equation, it’s not a game. Young Martin is dead. He will never play another game of baseball. Zimmerman might not, either. Nelson’s courtroom is not a stadium and she is not an umpire calling balls and strikes. We are not eating Cracker Jacks in a peanut or popcorn gallery. Did I say Cracker?

What we have is the Constitution in action; the right to a fair trial. Part of our Declaration of Independence guarantees that we are all equal.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

There is no doubt that the United States is still a land of golden opportunity. Everyone has a chance to follow the path to success. We see it in action every day, but in some situations, it’s not really equal; not that it has to be, because we do not live under any sort of Utopian rule. We do not live “where nothing in society will belong to anyone, either as a personal possession or as capital goods, except the things for which the person has immediate use, for either his needs, his pleasures, or his daily work.”

That statement is attributed to French thinker and novelist, Étienne-Gabriel Morelly. Where am I going here? Proof positive of the American system at work. Look at Jose Baez, speaking of the Casey Anthony case. He walked into a gold mine. What was he before she came along? An ambulance chaser? A DUI lawyer? While I am making no derogatory claims about his background, Casey got his name from two women sitting in a holding cell at the Orange County Jail. This is not hearsay. Baez told me. The rest, they say, is history. Mark O’Mara, on the other hand, worked very hard throughout his career as an attorney to get to this point. He earned it through his strong convictions and efforts. Granted, Mark NeJame referred Zimmerman to him after turning him down, but he wouldn’t have done so had he given any thought that O’Mara’s credentials were less than stellar. While some of you may wonder why I bring this comparison up at all, let me remind you that you can read about daily trial events in the newspaper. You can see and hear all about it online, on radio and on television. What I am is a pundit; a purveyor of private opinion made public. It’s my own brand of commentary, and here’s some more of it…

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A very powerful conservative blog, strongly favoring Zimmerman, splintered over O’Mara. Some believed his intention, all along, was to sabotage his client. Well, look at him now. He has done a splendid job dissecting many State witnesses, neutralizing some while turning others into Defense allies. This is the “mark” of a great attorney in the making, although I knew all along it was in him. He’s a natural orator and thinks fast on his feet. There aren’t too many in the field of law that can pat you on the back while stabbing you in the gut — and — at the same time, keep you smiling. That’s O’Mara. That’s class, no matter what his courtroom adversaries and the public may think. His partner, Don West, on the other hand, is blunt and direct; straightforward to a fault. He is quite effective, too. In my opinion, they complement each other. West goes in for the kill and O’Mara soothes the pain. Or is it the other way around? O’Mara numbs you first. Either way, it’s a talented team.

But has it always been effective? No, it hasn’t. Take the case of Ms. Rachel Jeantel, the State’s reluctant key witness. She was the last person who spoke to Martin before his death, other than Zimmerman. That is a matter of fact that cannot be disputed. The problem lies with her testimony, and what is left in its wake is quite complex. It falls into two vastly different camps; the thems that believe her and the thems that don’t. Granted, she lied under oath on more than one occasion, so why should anyone choose to believe her now?

In order to understand Ms. Jeantel, one must consider her style in the courtroom, not just her substance. Let’s say she will never be a diplomat. Nor will she ever be a United Nations interpreter, although she is multilingual. English is just one language and it’s not her first, obviously. De la Rionda established that she grew up in a Haitian family speaking Creole. From what I’ve learned, she lives in a ghetto section of Miami. She and her friends understand urban-speak. She knows hip hop. She comes from a different world of imperfect grammar and Ebonics, living in a different generation; under separate rules of engagement. Ghetto people of all generations have no respect for the police. If you must ask why they disrespect law enforcement, then you know nothing about inner-city culture. Why then, would anyone, in all seriousness, ask her why she didn’t call 911 after Martin’s phone disconnected? So the police would come banging on her door to interrogate her? We’re not talking about someone with visions of white knights in shining armor, anticipating that “help is on its way.” That is so delusional in her world where whites, let alone knights do nothing for her. Is it any wonder why she was adversarial? Her friend was dead at the hands of what?

What we got was a frightened 19-year-old girl, 18 at the time, who lied about going to the hospital because she didn’t want to see Trayvon laid out dead in his coffin. She lied under oath because she was questioned in front of the boy’s mother. She didn’t want to hurt or offend her. Was it wrong? Yes, but it shouldn’t have discredited all of her testimony. Admittedly, she also lied about her age, but she said she did so because, as a minor, she knew she could deflect the media from herself to her mother, meaning there could be no direct contact.

Where she had me at hello was when she told the Court that Martin called Zimmerman a “creepy ass cracker.” Who would possibly make something like that up to hurt the person she cared so deeply about? Immediately, one would think of anti-racism, like antimatter. Pot? Call the kettle black. Profiler profiling profiler. West jumped on it upon cross-examination.

“Do people that you live around and with call white people creepy ass crackers?”

“Not creepy,” replied Jeantel, “but cracker, yeah.”

“You’re saying that in the culture that you live in — in your community — people there call white people crackers?”

“Yes, Sir.”

This was, in my opinion, an attempt to transfer the racial profiling onus from Zimmerman to Martin. Did it work? The answer is two-fold. No and no. The term Florida cracker came from the cowboys that cracked their whips to herd cattle because they didn’t use lassos. That’s one version. There’s another theory for its usage. Slave foremen in the antebellum South may have used bullwhips to discipline slaves. Hence, they cracked the whip and became known as crackers. Is it really a bad word? Get real.

Without going into fine detail over what Jeantel said on the stand, I believe that the longer West crossed her, the more credible she became. He overdid it. Call it overkill. My father put it best when he later told me, “He made the sale, and then he bought it back.”

Incidentally, my father is quite conservative, but doesn’t support either side. What’s your opinion of Jeantel? 

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Now, we’re left with several problems. One is that the State has rested. Did it prove the defendant’s guilt beyond a reasonable doubt? At this point, I would have to say no, but I do feel that the general consensus among media types is that Zimmerman is guilty of something. The man is, by no means, innocent of everything. The State did cast him in a very negative light, but will it be enough to convict? In my mind, he was a creep the night of February 26.

However…

Looking at (1) FLJI 74 MURDER - SECOND DEGREE

3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

While some may conclude that Zimmerman was depraved when he followed Martin, it’s not as simple as that.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an indifference to human life.

This was the major contention on Friday after the State rested. This was what O’Mara fought vehemently for in his JOA, a Judgement Of Acquittal, argument. What Zimmerman did had nothing to do with ill will, hatred, spite or an evil intent. The fight was started by Martin, he maintained. The judge disagreed and said the State had presented enough evidence for the trial to continue. The jury will return on Monday morning. The State will now cross-examine and we will see how they do.

Some people have wondered during court breaks whether this case would have made it to the courtroom had it not been for Civil Rights leaders. Is that true? I don’t know, but were the original powers that be too quick to jump the gun (no pun intended) and take one person’s perspective as the truth; the shooter, of all people? We cannot simply overlook the accounts of every witnesses, and that should have been enough for an arrest then, not 45 days later. Let the legal system sort this out. Ultimately, it’s all the victim’s family wanted out of this — a day in court. For that reason alone, I do not believe there will be riots at the courthouse if Zimmerman is found not guilty.

In my closing argument today, I will say that the State did not prove its case. With the possibility of a jury in doubt and the Defense lurking about, waiting to pounce, a conviction on second-degree murder is a long shot. This defense team is very strong and smart. I mean the entire team. In my opinion, it is O’Mara’s trial to lose, and I doubt he will, although I will not predict whether the six-member panel will contemplate a felony manslaughter conviction. Something really, really went horribly wrong that night. Just remember, this is not a game, the judge is no one’s teammate, and neither is the jury; not even among themselves, yet the verdict must be unanimous. No timeouts for them.

Real Lawyerin' Goin' Down

To say that Don West is less than brilliant would be a mistake. He’s an extremely intelligent defense attorney and is highly regarded in the Central Florida area, but Monday’s opening statement was not one of his best days to plenty of people. I’ll be the first one to admit, Larry the Cable Guy he’s not; so he might be wise to keep his jokes in the office and not bring them into a courtroom setting, but I did understand the message he was sending. No adult with a driver’s license living in Seminole County was ever expected to be free from all knowledge of George Zimmerman and Trayvon Martin. And he was right. No, the joke didn’t work; however, the point of opening statements is to give the jury a synopsis of the trial each side is about to present. Was West’s opening statement a synopsis? Not in the sense that it’s supposed to be a condensed statement. No, not by any means. Altogether, it lasted around two-and-a-half hours. But was it as bad as all that? I don’t think so. His job was to get the Defense message across, and while there may have been minor lags in some of the juror’s attention, I feel he did do that. He accomplished what he set out to do. Whether the jury absorbed it all remains to be seen, because it was a lot of information, but remember the old saying — you heard it here first! And I think that was the idea. You heard it from him first.

John Guy is a veteran Assistant State Attorney with the Fourth Judicial Circuit. He’s been at it twenty years, and his experience showed up in court during his opening statement just before West’s. He came across like a seasoned professional. Which is exactly what he is. He was clear and concise, and his message got completely across to the ten jurors who sat awestruck over what he had to say. While I did see fidgeting during West’s performance. the jury was glued to Guy. If you saw the jury stare at him once, you saw the jury stare at him the same way twenty minutes later. In other words, they could have been straight from a scene from The Day The Earth Stood Still — totally riveted! The man is in a class by himself.

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I would describe Tuesday’s action in the courtroom as extremely interesting. There was some incredible lawyerin’ goin’ down in there. I have no desire to go on and on about the day, and I won’t, because you could simply read about it in your newspaper or online. Instead, I will offer one part of the day that really stood out to me, and it’s one that I can explain in a manner you should completely understand.

When State witness Selene Bahadoor took the stand, it pitted one veteran against another in a courtroom drama starring Bernie de la Rionda and Mark O’Mara. Bahador used to reside at 2841 Retreat View Circle inside the Retreat at Twin Lakes community. To get a good picture in your head, think about the “T” where George Zimmerman maintains he was sucker punched and beaten to within an inch of his life. Looking at the “T” from overhead, she lived on the right side, three doors down. That’s on the east side. Trayvon’s body was just west of the sidewalk heading south, virtually outside her back door. 

Why was it so crucial for O’Mara to discredit this witness on his cross examination? Because she told de la Rionda she saw two people flailing their arms and moving from left to right along the sidewalk. On cross examination, O’Mara got her to admit that, in her interviews and depositions, she never mentioned anything about running left to right. All she said was moving. Liar, liar, right?

She also told O’Mara she had no interest in being a media darling, but he told her about the interview she had with Matt Gutman from ABC News. She countered that it never aired. He pressed on. He asked her if she ever “Liked” the Justice for Trayvon Facebook page. She admitted that she had. He asked her if she ever signed a petition titled Prosecute the Killer of Our Son Trayvon Martin at change.org. Yes, she said, she did.

While some people may think all of this adds up to a bad witness, guess again. The State has their list of characters and the Defense has one, too. Robert Zimmerman and the entire Zimmerman family are much more slanted, as are Trayvon’s parents, yet they will be allowed to testify. They are family, you might say. Yes, but they are entitled to their own opinions, and that’s what this comes down to. Opinions do not disqualify you from testifying. When you take that oath, you are expected to tell the truth. Does it mean everyone does? Hell no! But it doesn’t mean you cannot have an opinion. If Trayvon had survived, you’d better bet his opinion of the shooting would be worlds apart from Zimmerman’s. Both would tell their stories and you could decide which version you want to believe, but it won’t matter. The jury is all that counts.

As for running from left to right, why is it so important to O’Mara? Because it would mean that the fighting started farther south; let’s say, closer to Trayvon’s house, and it would mean the fight didn’t start at the “T” intersection after all. Unless the Defendant was running back to his truck from the south side and they caught up there.

But that’s not one of his stories. And on redirect, de la Rionda asked her if any one of the investigators had asked her which direction the movement came from. She said no. As a matter of fact, none of the transcripts made mention of that question. No one asked her. That includes the Defense deposition of Ms. Bahadoor. Mark O’Mara never asked her the direction. Neither did Don West. What was that old saying? You’ll never know if you never ask. Or something like that.

Voir Dire Straits

George Zimmerman enters the court room on the fifth day of jury selection for his trial in Seminole circuit court in Sanford, Fla., Friday June 14, 2013. Zimmerman has been charged with second-degree murder for the 2012 shooting death of Trayvon Martin. (Gary W. Green/Orlando Sentinel, Pool)

A lot could be said about the first week of jury selection in the George Zimmerman trial, but I will spare you most of the somewhat boring and quite tedious details. I must tell you that it’s an intense study into the human psyche. Some of those interviewed seemed to beg for the chance to sit on the jury; as if to say (quietly) OUT LOUD that there could be a book deal down the road. At least, that’s the perception made by some of my media peers.

There’s also the matter over knowledge of the case. No one in Sanford, let alone all of Central Florida, is expected to be mentally blind to the tragic shooting death of Trayvon Martin by George Zimmerman. To deny knowing anything about it is to be so out of tune with current events, it’s close to incompetency. Or it’s a giant lie — obviously knowing more than one would admit to. Either way, this is the type of pre-trial publicity questioning that should qualify or disqualify a prospective juror. It’s like sifting through the weeds of a garden to get to the root vegetables; like carrots hidden under a lush layer of rich soil, waiting to be plucked and added to the recipe now simmering inside the Seminole County Courthouse.

When making a good stew, one must be very careful about the ingredients added. Too much salt is not good. Neither is too much pepper…. which leads me to a working segue — one of the potential jury prospects — E-7, a white male in his 50s with salt & pepper hair and a goatee. Soon after questioning began, I turned to the person to my left, a woman from ABC network news, and whispered that I recognized him from somewhere; like we had met or something. I couldn’t place him then and still can’t.

Initially, I thought he was quite smart and open. He seemed pretty square and strong in his tenets. I noticed he was a bit adversarial while facing Bernie de la Rionda, but he said he liked playing the role of devil’s advocate. OK, fine, but when Don West questioned him, I began to feel a bit leery and said so in my notations. I wrote that he was a bit cocky and sure of himself. Something about his earnest sincerity began to unravel. Here’s a guy who stated that he watches both FOX and MSNBC. Open minded? At first glance, yes, it appeared that way, yet he paid no attention to either side. That didn’t compute in my head. He was someone, I wrote, who says he knows nothing, but he “knows too much, perhaps. Or a know it all.”

The final thing I wrote was “I don’t think so,” meaning, he will not sit on the jury. 

When he left the courtroom after questioning, I was surprised when the judge called him back to ask about a comment made on Facebook. Did he write it? No need to explain why. Just say yes or no. He admitted to it and I knew right then and there he was doomed. This man, Jerry Patrick Counelis, is a pathetic human being. Sick. Everyone from both sides wants this to be a fair trial. Counelis tried to infiltrate the jury; to force his pro-Martin agenda on everyone else. Had he been selected, it would have been a terrible blow to justice.

Two days later, Counelis returned to the courthouse to express his concern over the lack of anonymity and privacy during the selection process. Huh? He was only happy to be questioned publicly Wednesday after leaving the courthouse. He gladly appeared on local and national television later that day and night and he has concern over WHAT? When I stopped for coffee at my local 7-Eleven on Thursday morning, an employee told me he was interviewed right in the parking only the day before. Because he protested loudly at the courthouse on Friday, kicking and screaming and attempting to get back to the jury room, he was trespassed until the end of the trial. In my opinion, a trespass was not enough. Instead, the man should have been arrested on the spot and held without bond until the end of the trial; then tried in criminal court. On what charges? Whatever could legally be thrown at him. He is the epitome of social immorality. Thankfully, he was caught by someone from the defense side and was stopped dead in his tracks. Imagine the dire consequences…

On Thursday, E-81 took center stage. She was an attractive woman who told de la Rionda that she thought Zimmerman was innocent. One of the first things that caught my mind was a simple statement that came out of her mouth. Trayvon Martin wasn’t beat up like George Zimmerman. He was dressed like a street fighter. Duh… he only had a bullet in his heart.

She made up things as she went along. Zimmerman had blood on his clothing. Down his collar and on shirt. Trayvon was a pot smoker. Guns. Street fighting. Parents weren’t aware he was going down the wrong path. George was just doing his job at neighborhood watch. Drugs made Trayvon aggressive. George was protecting his neighborhood.

She told de la Rionda she wouldn’t be able to erase it from her mind, which was pretty well made up. She told him she was quite educated. I laughed under my breath. Every American has a right to protect themselves. The more armed people; the better. She admitted she wanted to donate money to the Zimmerman defense, but didn’t.

When O’Mara took over the questioning, she mellowed to a good extent. Where she had been more adversarial to de la Rionda, she was amenable to the cordial defense attorney. When prompted, she said she could follow evidence and court instructions. If Martin’s alleged street fighting is “not presented at trial, she would not consider it,” she added. She said she had “no real concerns about leaving opinions out of the equation,” I didn’t believe her one bit and made note of it. 

Baloney! She sways in the breeze, but is fervent in her beliefs. I am convinced of it.

She was summarily dismissed later on.

This leads me to a very interesting and important part of jury selection. How many strikes does each side get? When we broke for lunch that day, someone sitting on the public side addressed the possibility that the defense was forcing the state to use one of their strikes on E-81. After all, she seemed to be more neutral by the time O’Mara was finished questioning her, but was she, and did it really matter? A local legal analyst said that the Defense had the State on the run, but was it true? Or was it merely another opinion formed by a criminal defense attorney turned temporary legal analyst?

In the state of Florida, one of the frequent questions concerns challenges from each side. This is directly from an e-mail sent out from the Court Services Administrator/PIO to all credentialed journalists:

Q. How many challenges does each side have in jury selection?
A. Because this charge is punishable by life in prison, each side will have 10 peremptory challenges and unlimited challenges for cause. Challenges are also commonly referred to as strikes.

Law.com describes peremptory as:

[T]he right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is distinguished from a “challenge for cause” (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial. The number of peremptory challenges for each side will differ based on state law, the number of parties to a case, and whether it is a civil or criminal trial. The usual phrasing used by lawyers exercising the challenge is “Juror number seven may be excused.”

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While I’m on a legal roll, let me continue by explaining why there are six jurors on this case:

Florida Statute 913.10 
Number of jurors. — Twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases. History.—s. 191, ch. 19554, 1939; CGL 1940 Supp. 8663(198); s. 87, ch. 70-339. 

The Sixth Amendment to the U.S. Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

In an 1898 ruling, the Court wrote, “a jury comprised of 12 persons, neither more or less” was a requirement. If that’s the law of the land, then what happened? Why six? In Williams v. Florida, 399 U.S. 78 (1970), the Court reconsidered the size of a jury and affirmed the criminal robbery conviction made by six people. The Court ruled that the Sixth Amendment says nothing about jury size. From hence on, it rejected the earlier decision and held that six was sufficient to satisfy the Sixth and Fourteenth Amendments, which, in part, states that:

[…] No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In 1979, the Court again visited the issue of jury size and unanimity. In Burch v. Louisiana, 441 U.S. 130 (1979), they found that Louisiana law which allowed criminal convictions on 5-1 votes by a six-person jury had violated the Sixth Amendment (along with the Fourteenth Amendment) right of defendants to a trial by jury. In a state criminal trial:

We thus have held that the Constitution permits juries of less than 12 members, but that it requires at least 6.  And we have approved the use of certain nonunanimous verdicts in cases involving 12-person juries… This case lies at the intersection of our decisions concerning jury size and unanimity… But having already departed from the strictly historical requirements of jury trial, it is inevitable that lines must be drawn somewhere if the substance of the jury trial right is to be preserved.

In other words, if a jury is to be as small as six, the verdict must be unanimous. Therefore, in Zimmerman’s case, a guilty verdict can only be rendered unanimously or not a all.

§

I will have more to write about this case as the trial progresses. This coming week should prove to be much more exciting than the first one, although I do find the whole thing to be quite fascinating and educational.

There are questions I am asked during this tedious process I sometimes have trouble answering. One, for example, is about George Zimmerman. What does he look like in court? What are his expressions? I can tell you this. I sit behind the Defense. All journalists do. I cannot see George’s face unless he turns sideways. I occasionally put the live feed on one of my iPads, but it’s a battery drainer; however, I do have my spy, code name Pea Pod, who keeps me informed while I stare at the back of Zimmerman’s head. For those of you who cannot watch the trial, he is more animated now than he was during the hearings. He must be! Potential jurors are watching. He is taking notes and smiling. He is paying close attention to details. This is very normal. Jodi Arias was transformed into a librarian by her attorneys. During the Casey Anthony trial, her seat was adjusted to its lowest elevation so she would appear to be too tiny to have murdered her child. Poor, poor, Casey; sitting next to Cheney Mason, who was much, much larger. He put his arms around her to comfort her; squeezing her shoulder. He patted her hands as they rested on the table. Pity, pity, pity party.

In Zimmerman’s case, he pretty much has to fend for himself, whether you like him or not. He weighs over 100 lbs more than the day he shot Trayvon. The jury must be made aware of that. While he most certainly will never be a demure librarian, he will never be a cop or judge, either — something he aspired to be — no matter what the verdict.

And Trayvon? Whatever some of you may think, he was not a 6’3” monster weighing over 180 lbs, and the jury isn’t going to hear that he was.

See also: Daily Kos

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

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.

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!

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.)

Why Judge Lester Will Refuse to Recuse

I can understand why George Zimmerman’s defense attorneys, Mark O’Mara and Donald West, filed a motion for Judge Kenneth Lester, Jr. to step down. It makes sense. For one thing, had they not, it wouldn’t help pave the way for a retrial later on if Zimmerman is convicted. I’m sure he requested it, too, and no matter what, the attorneys are there to work for their client. Besides, George is used to getting what he wants, he believes this is a frivolous case, and he wants a new judge. So there. Only it doesn’t work that way, and there are some rather good and strong reasons why.

Let me first mention a few “for instances” that were mentioned in the actual motion filed by his attorneys, the VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, which can be viewed HERE, directly from the gzlegal.com Website.

On page 5, the motion says:

“Generally a statement by the judge that he feels a party has lied in a case indicates bias against the party.”

Now hold on a minute. Didn’t another judge once say something about the truth and Miss Anthony are strangers? That had nothing to do with his recusal request, did it? No, it didn’t, and as a matter of fact, look at it this way. If all I had to do was lie to a judge to get him/her disqualified for bias, I’d lie to every judge who comes rolling down the pike, and I’d never go to trial. They’d run out of judges long before the statute of limitation runs out. Like a lot of defendants, lie your way out of it.

Let’s move on to page 7:

“The Court states that the money used to post bail ‘… is not money which the Defendant has earned through his hard work and savings, so forfeiting it for failing to appear would not impact the Defendant’s life in the same manner as a similarly-situated defendant who puts his house up for collateral to obtain bond.’ Page 7, (f). However, the Court fails to note that his family’s home would thereby be forfeited if he failed to appear. Further, the Court ignores the reality that those funds are the only funds available to Mr. Zimmerman to survive, to eat, to pay for utilities and to provide his family shelter.”

Here are the problems I see. George Zimmerman not only lied to the court, he lied to his parents, who took out a second mortgage on their house to secure the bond money. What a weasel. He lied to his attorneys, too. As for food and shelter, it was clearly spelled out that the money was to be used for his defense, not to pay off credit card bills and to buy expensive guns. Aside from that, it’s a lousy excuse and a cheap argument.

From page 9:

“The Court departed from its role as an impartial, objective minister of justice when it stated on two occasions on its Order that in the Court’s personal opinion there is probable cause to believe that the Defendant committed a violation of Florida Statute 903.035(3), a third degree felony punishable by five years in prison. This is tantamount to instructing the State that Mr. Zimmerman should be prosecuted for this offense. Comments like these are taken seriously by the Defendant, and further convinces him that he cannot get a fair trial from this Court. The Court made a similar comment about his wife at the June 1, 2012 bond revocation hearing when it said…”

We all know what it said, and Shellie Zimmerman was duly charged. The problem here is that the motion blames the judge and not his client. Had his client and wife just told the truth to begin with, this would not be an issue. It’s a situation that is being passed off on the judge. The fact remains that the Zimmermans lied and the judge pointed it out, including what the possible charges and penalties might be. Who is to blame for that? Was the judge merely telling the truth? Poor George says he takes the judge’s comments seriously. Well, shiver in me boots. What about the judge? He took the Zimmermans’ comments seriously, too, but according to the Book of George, he wasn’t supposed to do that? Only George is allowed? Gimme a break. I could go on and on, but…

George is responsible for his own mess. Based on the recusal motion, I see nothing that warrants the judge to step down, but that’s only part of the reason why this judge will refuse to recuse.

§

I think that most of you are aware of a role I played in a motion filed in another case where the presiding judge was asked to step down. I did an awful lot of legal studying back then, and in March of 2011, Casey Anthony’s defense filed a motion, the MOTION FOR A REHEARING ON ORDERS DENYING MOTIONS TO SUPPRESS, that had this one glaring statement:

c. The Court Did Not Look at the Evidence from the Hearing Objectively and Instead Displays a Clear Bias [emphasis mine] In Explaining Law Enforcement Conduct Rather than Evaluating Whether a Reasonable Person Would Have Felt Free to Leave.

Holy Foghorn Leghorn! Only thing is, under FLORIDA RULES OF JUDICIAL ADMINISTRATION, Rule 2.330, DISQUALIFICATION OF TRIAL JUDGES, “Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.” OK fine, but what it means is that the procedure for filing disqualification motions for civil and criminal cases is set out in Rule 2.160 of the Fla. R. Jud. Admin., amended by the Florida Supreme Court in 2004.

Since this is the route O’Mara and West are taking, they should be familiar with F.S. §38.10, which states:

Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the prescribing judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.

But please pay particular attention to this part:

However, when any party to any action has suggested the disqualification of a trial judge and an order has been made admitting the disqualification of such judge and another judge has assigned and transferred to act in lieu of the judge so held to be disqualified, the judge so assigned and transferred is not disqualified on account of alleged prejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge admits and holds that it is then a fact that he or she does not stand fair and impartial between the parties. If such judge holds, rules, and adjudges that he or she does stand fair and impartial as between the parties and their respective interests, he or she shall cause such ruling to be entered on the minutes of the court and shall proceed to preside as judge in the pending cause. The ruling of such judge may be assigned as error and may be reviewed as are other rulings of the trial court.

Remember the first judge? Jessica Recksiedler? She was asked to recuse herself and that’s how Judge Lester came to the bench.

After Judge Recksiedler willfully stepped down, and she could have easily remained on the bench, Judge Lester cannot be disqualified because of alleged prejudice solely based on what Zimmerman claims. The only way it would work is if Lester admits he is biased in favor of the prosecution. Even then, his admission would merely be recorded in the court minutes and the trial would proceed on schedule. Of course, this would be reviewed after a conviction (if there is one) and it would, no doubt, lead to a retrial, but let me assure you, this judge will not fail. He will never admit to bias, and because he’s the second judge, the rules are different.

One of the misconceptions of trial court judges is that rulings are the basis for disqualifications. They are not, as O’Mara and West are claiming in their motion. A judge may not be disqualified for judicial bias. He/she can be disqualified, however, for personal bias against a party. (See Barwick, 660 So. 2d at 692, and cases cited therein.) You just have to prove it.

§

Lest you think I will leave you dangling with merely one slice of cake from the book of rules, allow me to add a thick, sweet, slab of icing to the entire cake.

Back to good old Rule 2.160…

Section (g) deals with the filing of successive disqualification motions. This is to prevent the possibility of abuse, otherwise referred to as judge-shopping. Yes, you read it right… JUDGE-SHOPPING!

When Judge Recksiedler disqualified herself, Judge Lester cannot be disqualified on any successive motions filed by Zimmerman’s defense “unless the successor judge rules that he or she is in fact not fair or impartial in the case.” And that ain’t gonna happen, folks. Judge Lester will be allowed to toss out any new dismissal motions filed on Zimmerman’s behalf.

See also: The Florida Bar Journal, Judicial Disqualification: What Every Practioner (and Judge) Should Know, Douglas J. Glaid, October, 2000 Volume LXXIV, No. 9

No Smoking Gun?

There wasn’t really any shockingly new or surprising material in Thursday’s document release from State Attorney Angela Corey’s office, but I did manage to squeeze out a bit of information. Ever since this news story broke, my main contention with George Zimmerman was that he got out of his vehicle with a loaded pistol to chase after a figment of his distorted imagination — a hoodlum; a bona fide bad guy. Prior to yesterday’s release, we knew nothing about Sanford’s three main gangs, all known as “goons” in one way or another. Could Zimmerman have uttered “f*cking goons” under his breath during his now famous call to a Seminole County police dispatcher that fateful night of February 26m 2012? It makes more sense than “cold” or “punks” doesn’t it? And it’s a matter of fact that the majority of those goons are made up of minority ethnicities; African-American and Hispanic. For me to say so does not make me a racist.

One thing is certain regarding race. Not one of the nearly 30 people interviewed considered Zimmerman to be one, either, and I, for one, never believed he was from the gitgo. If anything, look at the city of Sanford and Norm Wolfinger’s office for racial issues but, even there, I would dare say you will never find anything close enough to substantiate claims of bias. Odds are good that had it been a Hispanic wearing a hoodie that night, his fate would probably have been the same. Zimmerman was on a mission. Look to Bernie de la Rionda for guidance on this matter. He maintains that Zimmerman is guilty of criminal profiling. That’s a far cry from racial profiling. On this issue, I suggest we move on because there is nothing to substantiate any prejudice and all that will come out of it will be feuding and hard feelings among commenters. The real issue remains the same. Zimmerman profiled, stalked and murdered an innocent teenage boy. Regardless of what anyone feels Martin had done prior to that night, he did absolutely nothing to deserve what he got — a hollow-point bullet through his heart.

I’m going to start by taking this page-by-page. I will readily admit I didn’t get everything, so I will rely on you, dear reader, to fill in the gaps and offer up your ideas. There’s a lot to discuss.

§

On page 11 of the 284-page document, State Attorney’s Office Investigative Division Memorandum, an enlightening statement was made by a Sanford police officer:

“Officer Mead saw the flashlight ‘on’ at the intersection of the two walkways when he responded to the scene.”

Actually, the flashlight was found south of the intersection, as the maps will show, but the part that’s very revealing comes from what Zimmerman told investigators during his next day reenactment. He specifically said his flashlight was not working that night.

“… I had a flashlight with me. The flashlight was dead, though…” (Watch HERE; 8:11/15:04)

This is another example of Zimmerman’s imagination getting the best of him. Does he assume that changing the facts literally changes the facts to his advantage? Does he think people are so stupid he can pull the wool over their eyes, including trained law enforcement investigators? Yes, I’m afraid so. It also means, in my opinion, that he pounced on Martin, cop style, with gun and flashlight in hand, right in the young man’s eyes.

§

On page 34, during the night of February 26, while at the police station:

“The Evidence Technician came and collected clothing and photos of Zimmerman. The injuries to the back of the head of Zimmerman appeared to be abrasions and not lacerations.”

What this tells me is that Zimmerman was never close to his demise. If Martin popped him one, it was in self-defense and he he had it coming. It also tells me that those butterfly bandages on the back of his head, placed there by his wife, (shown the next day during the reenactment) were a farce and nothing more than a pity ploy to make him look more injured than he was.

§

On page 54 of the document, and part of the FDLE Investigative Report, Wendy Dorival put on a presentation at a Retreat at Twin Lakes HOA meeting at Zimmerman’s request. She is a civilian liaison with the Sanford Police Department. Held on September 22, 2011, she clearly instructed Zimmerman of the rules. A witness (name withheld) at the meeting said that:

“… it was told, you watch, you do not take any action on your own, you get away from the situation and you call the police.”

These are guidelines, not laws. Zimmerman was not supposed to be carrying a firearm, either, but he was licensed by the state of Florida to do so. The point of this is to show that he was aware of the rules, yet he chose to ignore them. Why?

§

On page 60, one of the witnesses noticed that the loud noises were getting closer.

“They first thought it might be kids in the neighborhood or people having a good time outside. Hearing the noise a second time, he decided to mute the television. Not hearing anything at first, he heard the sound again as if it was coming toward him and getting louder.”

What this signifies is movement, which contradicts Zimmerman’s account of where the fight began and where Martin fell to his death, which were in close proximity. According to Zimmerman, there was no running; no real movement. The maps show that the fight did not take place where he said it did, and Martin’s body was found farther south.

§

On page 65, another witness describes what she heard and saw. To be fair, she did take her contact lenses out before being compelled to look out of a back bedroom window:

“Hearing what sounded like running, she glanced out of the bedroom window (rear facing) to see a person go by from left to right (in a south to north direction).”

What this tells me is that, if true, Martin and Zimmerman were farther south than Zimmerman explained in his reenactment, and that Martin was much closer to where he was staying; in the townhouse that was east and most south of the sidewalk where he fell.

§

Another witness, on page 71, states that he heard what sounded like an argument, right in the area of the T-section on the walk way. He then said:

“… he heard a scuffling sound that was moving down the walk way getting closer to the building next to his house.”

This means the chase headed north, but the ensuing battle moved Zimmerman and Martin toward the south, as one of them fought back. (See map)

§

On page 74-75 of the FDLE Investigative Report, Wendy Dorival said she never had any further contact with Zimmerman after their September HOA meeting until the following month, when he requested information on a recent burglary that happened in the area. However, at the meeting, she gave him a neighborhood watch coordinator’s handbook and explained all the duties and responsibilities. She also asked him for something else:

“Dorival said during the meeting with Zimmerman she asked him to make a list of all the neighbors who wanted to be involved in the crime watch program. Zimmerman was then to determine who would be willing to be block captains and get her the list… Dorival said Zimmerman never provided her with the list of names for the crime watch program.”

This can be highly revealing. Was Zimmerman a loner? Was he a vigilante who wanted all the glory for himself? Or was he lazy and someone who didn’t follow through on his obligations? Not according to his work ethic, where he was quite adept at his responsibilities, according to interviews with associates.

§

Page 76 is a very telling page. The FDLE report explains what agents found in Zimmerman’s possession the day he turned himself in to authorities on April 11:

“Upon the completion of booking Zimmerman into the Seminole County Jail, SA Rogers transferred a Fabrique Nationale Herstal (FNH) Five-seven handgun cal. 5.7 x 28 SN# 386201358 and three magazines with ammo to SAS Duncan. SA Rogers stated that the handgun and magazines were the property of Zimmerman.”

It’s my understanding that this particular weapon is a police killer because of its ability to pierce armor. I imply nothing by stating that. You can formulate your own opinion, but the gun was fully loaded and each clip holds 20 rounds. That’s 80 bullets, folks. I understand his fear and desire to protect himself, certainly in light of the New Black Panther Party threat against him, but my question is whether this particular gun is overkill. Until his arrest, it was still legal for him to carry a firearm. To those who give to his cause, you’re out $1,200, plus extra clips and ammo. If he’s found not guilty, thank yourself for buying him one helluva pistol.

§

On page 78, Zimmerman spins his tale to a witness, who I will assume is Frank Taaffe, Joe Oliver or Mark Osterman. What really intrigues me the most is how Zimmerman was able to pull the gun out of his holster. Of particular interest is the fact that he is left-handed and the holster was on his right hip, set-up for a left-handed person to reach across his chest and belly to go for the gun. While that might not seem like much, it also means that when he went for the gun with his right hand, he either fired it upside down or he had the time and space to turn the gun right-side-up before firing it straight into Martin’s chest:

“Zimmerman used both his hands to pull Martin’s hands away from Zimmerman’s mouth. Martin then observed or felt the handgun on Zimmerman’s side, took his other hand away from Zimmerman’s nose and reached for the handgun stating, ‘You’re gonna die now Mother F*cker.’ Zimmerman slapped Martin’s hand away from the handgun, pulled the handgun, rotated the weapon and fired one round. Zimmerman’s elbow was on the ground at the time he fired.”

I find this to be extremely problematic for several reasons. It means that, since the bullet went straight into Martin’s chest, he had to have been perfectly parallel to Zimmerman’s body at the time the bullet was fired. Why? Because earlier in the interview, Zimmerman’s friend said this:

“Martin and Zimmerman struggled, which resulted in Martin gaining a position on top of Zimmerman, sitting on Zimmerman in the ‘mounted position,’ Martin’s butt on Zimmermans stomach, with Martin’s knees on the ground next to Zimmerman’s ribs.”

 With knees positioned the way they were, how does one wiggle their way out? How did the gun move from behind Martin’s thigh to in front of it? If Martin was riding Zimmerman like a horse, how did the bullet go straight into his chest while Zimmerman’s elbow was in direct contact with the ground? If Martin was positioned parallel to Zimmerman at the time of the shooting, how did Zimmerman manage to get the gun between the two sandwiched chests, let alone with enough of a gap to point the gun straight in?

Incidentally, Zimmerman said he made eye contact with three witnesses during the struggle, yet no witness has admitted to that. How observant for a guy to notice that, yet he contradicted himself regarding Martin’s age; someone who was a heck of a lot closer than the nearest witness.

§

On page 86 of the FDLE report, a background interview took place with the person who provided Zimmerman’s firearms safety training course. Zimmerman’s certificate was dated November 7, 2009. I will have a complete article that will describe, in detail, what led up to George’s obsession with buying guns. Yes, it’s about a dog. Until then, there is plenty to discuss, including personal issues regarding his family and a certain ex-fiance. That’s too much to handle in this post, so please feel free to address his temperament and anything else. Certainly, if I’ve missed anything else, I’d be more than happy to learn, but as far as I’m concerned, the only smoking gun, so far, is the one that George Zimmerman held in his hand on February 26, 2012.

Gun Power

There’s been plenty of talk around the blogs and forums of late about working out a plea deal. You know, why not let George Zimmerman plead guilty to a reduced charge of manslaughter and get it over with? It would save the state of Florida a lot of money, and that’s what this was all about to begin with, right? Well, yes, it would save money but, no, it was not what the state had in mind at all. Well, maybe there’s one major detail, which I’ll explain later.

To begin with, I now agree with what former lead investigator Chris Serino said about the manslaughter charge. He actually knew what he was talking about, but before any of you throw racial darts my way, or missiles of any kind for any reason, you’d better keep an open mind and read the entire article or you’ll be spending some time left out in the cold during one of the most brutal summers on record.

Yeah, George, take the plea!

No, don’t!

Any way you look at it, if he is convicted of second-degree murder, it goes without saying that it would be a felony conviction. But what about manslaughter? Would it be a felony or a misdemeanor if he’s convicted of that instead? Murder is a piece of cake to explain. It means that malice aforethought must be present, whereas in manslaughter, it’s absent. Absence of malice. OK, that’s easy enough to grasp, but what makes it a misdemeanor or felony?

Involuntary manslaughter means causing the death of another person without intent. Generally speaking, it’s caused by an improper use of reasonable care while carrying out a lawful act, or while in the commission of an unlawful act not amounting to a felony. Let’s say drag racing with your car that results in a homicide. You took an unreasonable and high-degree of risk and that’s considered criminally negligent manslaughter. On the other hand, let’s say you’re chopping down a tree and accidentally hit someone with the ax — killing him — there’s nothing criminal about it. In many states, depending on the degree of involuntary manslaughter, it could be a misdemeanor or a felony.

In the case of voluntary manslaughter, we’re talking about an intentional killing that’s accompanied by added circumstances that mitigate the killing, not excuse it. In its most common form, it occurs when a person is provoked to commit the homicide. This is felony manslaughter, and it goes to the very heart of the Trayvon Martin shooting death, whether it’s considered manslaughter or second-degree murder. Either way, if George Zimmerman is convicted, it will be a felony conviction. Interestingly, the Orlando Sentinel reported that the paperwork originally sent to prosecutors stated that there was probable cause to charge Zimmerman with manslaughter. The Sentinel article went on to say that it “was signed by lead Investigator Chris Serino and his boss, then-Sgt. Randy Smith, but it was the department’s official position and had the support of [former Sanford police Chief Bill Lee Jr.] said Capt. Bob O’Connor, who oversees the department’s major-crimes division and also was part of the investigation.”

Well, what’s all this hubbub about manslaughter or murder? Why is the public split on it? I mean those in the Martin camp. You see, it really doesn’t matter and that’s why some attorneys believe the state overcharged. Of course, that major detail I said I’d explain later could be as simple as getting him to plead to something — PLEAD DOWN — but it’s not. It can’t be.

You see, back in the late 1990s, George Bush’s younger brother, Jeb, was governor of the great state of Florida. He pushed through a law, Florida Statutes, Section 775.087 (2)-(4), that became effective on July 1, 1999. What was it, you ask, that could have come from a conservative, gun-respecting, NRA-allied Republican; the same Jeb Bush who signed SB 436, better known as “Stand Your Ground” into law in 2005?

Why… the legislation enacted his initiative providing mandatory sentences for felony convictions of crimes in which a gun was used. Plain and simple.

For pulling a gun during a crime, a mandatory minimum sentence of 10 years is imposed. For certain felony crimes or attempted felonies, the 10 year mandatory sentence is authorized if the criminal possessed a gun (or destructive device). For firing the gun during a crime the mandatory minimum sentence is 20 years. For injuring or killing a victim by firing the gun during a crime, a mandatory minimum sentence from 25 years to life in prison is authorized. (See: Mandatory Sentences Under the 10-20-Life Law and Experts: Florida’s ‘10-20-Life’ empowers prosecutors but handcuffs judges, juries, defense attorneys)

So you see, forget about whether it’s second-degree murder or felony manslaughter because, either way, they are both felonies and if you are in Trayvon’s camp, all you want is a conviction. Stop worrying about a plea. The least Zimmerman could get would be 25-years. That sort of changes the perspective on Mark O’Mara now, doesn’t it? 

The Bond Conundrum

Judge Lester’s bond order regarding George Zimmerman will be released by the Seminole County Clerk of Courts today. Will it allow Zimmerman to be released or will it keep him in jail until the outcome of his trial? I don’t even consider Stand Your Ground a viable defense, so forget that.

In my opinion, the judge has an easy route to take. He can allow Zimmerman to be released on bond, but set that bond as high as $1,000,000 (or higher.) It would clearly take the onus off the court and lay it directly into Mark O’Mara’s lap. How, you say? It’s quite simple, actually. If Lester disallows bond, he may come across as a hard-nose — unbending and cold. On the other hand, if he grants bond, he could be perceived as having the wisdom of Solomon. I think he’s a shrewd intellectual. By washing his hands of it, Mark O’Mara would be left holding the cards. That means $100,000 will come out of Zimmerman’s bank account to free him. What does that mean? Would it cut into the defense team’s budget? Immensely! Will the defense come to a screeching halt? Will O’Mara try to convince Zimmerman to remain in jail so a proper defense can continue? There lays the conundrum. The money really belongs to Zimmerman. It would be his call to make.

The Complex Perplexities of George and Shellie Zimmerman

Today was a very busy day, that’s for sure. I’m collecting my thoughts for an article related to the days events. I took a number of pictures at the task force forum I attended earlier, but the judge’s written order explaining why he revoked George’s bond must take precedence. It was quite direct. There’s also the issue of Shellie Zimmerman’s arrest on a nasty little perjury charge. Do I think they were planned together? No, absolutely not. Coincidence? That is more likely the case. The judge’s order was pending and so was the arrest warrant. One is through the court and the other is through the state. That’s two separate branches of the government and they don’t send love letters back and forth. Everything must diligently and properly go through the legal system. Period.

For now, it’s clear to see the judge and attorney’s office mean business. While some may look lightly on these offenses, the people in charge — the REAL ones — are not playing games. This is some serious stuff.

While I had set my sights on another topic, this is very important to address, so expect it to be my next post. Was the judge too critical in his ruling? Was Shellie’s arrest a bargaining chip for the state? That’s what I’ll be focusing on.

I will say this about the day. I had an opportunity to shake Tracy Martin’s hand and offer my condolences. He was very gracious. From everything I’ve witnessed so far, Trayvon’s parents are regular people, just like you and me. No different. Sybrina Fulton said she is not against guns. Her father is a retired Miami cop. She wants the law changed. Tracy Martin said he will be spending Father’s Day, this Sunday, at the cemetery — with Trayvon. Remember to keep those things in your mind as you consider this case.

Bond, Revoke Bond

Call me old fashioned or set in my ways or something, but I got used to the courtrooms run by Orange County judges Stan Strickland and Belvin Perry, Jr. By that, I mean, when we went to the Casey Anthony hearings, chances were good that the honorables would have been inclined to rule on new motions — ones presented that day — at a later date, giving the prosecution and defense (and us) time to ingest and digest the gist of what had just been presented. In other words, the judges routinely gave the opposing side an opportunity to work up a legal response to be argued at a subsequent hearing.

Don’t get me wrong. In no way am I questioning the manner in which Seminole County judge Kenneth R. Lester, Jr. (yes, another junior) runs his courtroom. As a matter of fact, I sensed from the start that this was a no nonsense judge; one who knows the law and how to interpret and implement it. Fair and firm… that’s what I’d call him. Balanced, too, but while attending the hearing last Friday, I never expected to hear a motion that had been filed a mere two hours earlier, followed by an immediate decision from the judge. Where did that come from, and why didn’t Mark O’Mara, George Zimmerman’s lead defense attorney, protest? Well, there’s more to the story, but first, the matter at hand. While the ending may have shocked us, it wasn’t the reason why we were there to begin with.

The hearing was to argue for and against releasing information pursuant to Florida’s rules of discovery, otherwise known as the Sunshine Law. The state said that the names of witnesses should be kept out of public view for their own protection. The defense agreed, and added that things should be kept at a slow pace for now. There’s no reason to release the information at the moment because there are a lot of people to interview further. This will take time.

The media wants everything made public because that’s the law, argued Orlando Sentinel attorney Rachel Fugate in response, and, eventually, the names will be made public anyway. Why not now? So far, she said, the state and defense haven’t shown good cause why any information should remain behind closed doors, and to be honest, it all depends on which way you look at things. Here, the crux of the matter goes well beyond protecting innocent witnesses, unlike the Casey Anthony case, which she compared it to. Casey never admitted that she killed anyone. George did, and that’s part of the problem, aside from race and outrage being major factors. Most of the public agreed with the prosecution in State v. Casey Anthony. Here, it’s deeply split.

Aside from race, the state contends that George Zimmerman’s statements to investigators add up to a confession, and because of that, they are exempt from disclosure. Of course, the defense disagrees. Yes, the defendant admitted he shot and killed the victim, but it was not a murder. It was in self-defense.

Judge Lester called it a matter of what’s inculpatory and what’s exculpatory. One says it’s a fish; the other says it’s a fowl, he added. Inculpatory is evidence that can establish a defendant’s guilt, while exculpatory is evidence that tends to clear a defendant of guilt.

In the end, the judge decided to follow the law and release the discovery documents, but not without poring over them, piecemeal, in camera, and redacted, which means he will most likely censor some of what’s released, like in the first document dump. And just like Judge Perry, Judge Lester reminded the attorneys that this will be no trial by ambush! What you see is what you get.

Incidentally, defense attorney Mark O’Mara said he expects to see a new round of discovery by Monday or Tuesday, so keep your eyes open, folks.

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When Judge Lester abruptly revoked George Zimmerman’s bond on Friday, it caught me off guard. Like I said at the beginning of this post, I pretty much thought the court would allow time for the defense to prepare. After all, the motion was filed that morning. But I missed something along the way.

At the April 27 hearing to discuss the motions filed by media attorneys, O’Mara stated that his client had misinformed the court about his financial standing at the bond hearing held a week earlier, on April 20. (This signaled the prosecution to go on the offense and dig up some damning information.) While George sat silent in the courtroom, his wife Shellie, out of camera view, lied under oath about their financial situation. He was fully aware of what she was saying and doing. Instead of being flat broke like she testified, he had amassed a small fortune in excess of $135,000, give or take a few truckloads of chicken feed.

That’s not all. There was a problem with the passport — or passports — George held. At the bond hearing, he surrendered his U.S. passport and “tendered it to the court.” It was due to expire in May anyway. So far, so good, except that he failed to inform the court that he held another passport. It seems the first one was lost and he had applied for a replacement in 2004. Passports are good for ten years, so that means the new one is still good for another two years. Meanwhile, the old one resurfaced and that’s the one he turned over. While there is nothing illegal about it, the state had every right to cry foul. George is, after all, a defendant in a murder case, and the state takes EVERYTHING seriously. So does his team of defense attorneys.

And then there’s the judge.

While Judge Lester overlooked George’s indiscretion concerning the passport, he may have done so because of George’s overt lies concerning his finances. Obviously, that was the case in court last Friday, and because defense counsel had previously mentioned the money issue back on April 27, it was no real surprise when the state smacked George with its MOTION TO REVOKE BOND that day.

Did the defense see it coming? I don’t really know, but I will say this. Upon entering the courthouse, you have to pass through a security screen which includes removing your shoes. When you get to the 5th floor courtroom, you must pass through another security checkpoint before entering. As I was placing my personal items back in my pockets, Mark O’Mara came upon me. We spoke briefly. I told him how polite and respectful he was to me when Bill Sheaffer introduced us during the Anthony trial. Mark, if you recall, was hired as a legal consultant for WKMG. If you think back, you may remember Mark NeJame was also with the CBS affiliate. Anyway, whenever O’Mara and I saw each other again during the trial, we always exchanged greetings. He’s a real gentleman. This time, I did wish him the best in the courtroom and he didn’t seem preoccupied with anything that may have been coming down the pike. After the hearing, I spoke to him again, and he agreed when I said it wasn’t a good day.

“No, it wasn’t,” he admitted.

If I had to take an educated guess, I would say that the defense team did not expect this broadside from prosecutor Bernie De la Rionda, and to be honest, I don’t think it was the motion itself as much as it was De la Rionda’s blow-by-blow vocal delivery and the judge’s abrupt decision to revoke bond. It was a veritable wham-bam-thank-you-ma’am, slam dunk, bada-bing sorta thing.

Here’s the bottom line. George Zimmerman lied. While you may not have heard his own voice doing the lying, he did so through his legal counsel and through the testimony of his wife, in sickness and in health; through good and through bad. And the bad part about it was that he manipulated his attorneys and his spouse. That, in my opinion, is what really perturbed the judge the most. And lying to the court, of course. It’s a cold day in hell when you can pull the wool over a judge’s eyes, let alone get a chuckle out of him for trying.

While he sat in the Seminole County jail awaiting his bond hearing, George played his sudden fortune like a Wall Street pro, only he did it in code, assuming the law would never understand a word of it. Well, George, those plastic decoder rings you used to get in cereal and Cracker Jack boxes as a kid were invented a long, long time ago, before Dick Tracy, and it doesn’t take much of a brainiac to figure out that $135 = $135,000 in code-speak. Duh. It’s stuff like this that truly makes me wonder if George actually thinks of himself as some sort of comic book superhero who’s above the law. It’s not Superman… it’s… it’s Zimmerman!

Despite George’s immature attempt at deception, I’m going to go out on a limb and take a stab at how the judge will respond to a second bond motion filed by the defense requesting his release. Sure, it will be granted, but the judge is out of town this week, so George will have to sit and stew for awhile. God knows, he earned it. Of course, when the hearing is eventually held, he will kiss a good chunk that money in limbo good bye. Bond should be set to the tune of $1,000,000 if you ask me, which, when decoded, translates into a $100,000 down payment; still a mere pittance to a guy like him and his loyal minions, but a huge slice of the pie when it comes to the not so small matter of mounting legal fees.

[Since this writing, the defense team has decided against filing a new motion for a bond hearing at this time. See: Update For Motion On Bond]

Until the hearing comes, George and his defense team will need to do some serious head banging. He profoundly impacted his credibility with the judge. To those who disagree, listen to O’Mara’s own words. “There is a credibility question that now needs to be rehabilitated by explaining in a way what they were thinking, when they did what they did, and we’ll address it… I think that explanation or apology, if it is, should go directly to the person who deserves it. In this case, that is Judge Lester.” (See: George Zimmerman returns to Seminole County Jail)

Take a look, too, at what the Orlando Sentinel put together from their own reporting and research. This is something a jury will not ignore.

Zimmerman’s untrue statements

• The night he shot Trayvon Martin to death, police say Zimmerman told them his record was squeaky-clean. In fact, he had been charged in 2005 with resisting arrest without violence during an altercation with a state alcohol officer. Zimmerman wound up in a pretrial-diversion program, a scaled-down version of probation offered to nonviolent first-time offenders.
• When he was booked into the Seminole County Jail on April 23, he told the booking officer that he never had been in a pretrial-diversion program before, documents show.
• At his April 20 bond hearing, while making a surprise apology to Trayvon’s family, Zimmerman said he didn’t realize Trayvon was so young. In his call to police moments before the shooting, however, he described Trayvon — who was 17 — as in his “late teens.”

These things, plus the money deception, will not bode well for the defense. The judge will give George an opportunity to explain himself, but what does O’Mara think? “My understanding was that Judge Lester seemed to indicate that he wanted testimony. That is a very complex decision to make about what effect that would have, not only at the hearing itself, but any future testimony, so we haven’t made that decision yet.”

I don’t think I’m even close to going out on a limb when I say that George can kiss the old stand your ground defense good bye. Since it will be Judge Lester’s decision to make, wasn’t it really stupid of George to lie to him, of all people? Wasn’t that a blatant lack of common sense and honesty? Or was it stupidity? Couldn’t the night of February 26 have been the same thing? A blatant lack of common sense and honesty?

Because I am so sure this case will go to trial unless a plea deal is made — which I strongly doubt, George is going to have to do something to regain his credibility, but I don’t know what. His defense team is doing its best at damage control, but how much good will it do?

From the George Zimmerman Legal Defense Website, Details Regarding The Request For A Second Bond Hearing For George Zimmerman:

(Edited for content)

While Mr. Zimmerman acknowledges that he allowed his financial situation to be misstated in court, the defense will emphasize that in all other regards, Mr. Zimmerman has been forthright and cooperative. He gave several voluntary statements to the police, re-enacted the events for them, gave voice exemplars for comparison and stayed in ongoing contact with the Department of Law Enforcement during his initial stage of being in hiding. He has twice surrendered himself to law enforcement when asked to do so, and this should demonstrate that Mr. Zimmerman is not a flight risk. He has also complied with all conditions of his release, including curfew, keeping in touch with his supervising officers, and maintaining his GPS monitoring, without violation.

Why did George stay “in ongoing contact with the Department of Law Enforcement” when he first went into hiding? Because he thought of himself as one of them? A cop’s cop? Among his peers? The first thing a defense attorney worth his weight in salt would say to a new client is to shut up. That’s why this statement is meaningless. Of course it was his initial contact because, on advice of counsel, he stopped talking after that.

He has twice surrendered himself to law enforcement when asked to do so, and this should demonstrate that Mr. Zimmerman is not a flight risk. He has also complied with all conditions of his release, including curfew, keeping in touch with his supervising officers, and maintaining his GPS monitoring, without violation.

This, too, goes without saying. Isn’t that a given? This is what he was supposed to do, and most people comply with the law. Besides, once the cash was out of his hands, where was he supposed to hide? With what? Once the defense learned of the money, it was transferred into a trust fund where George couldn’t touch it. Neither could his wife.

The audio recordings of Mr. Zimmerman’s phone conversations while in jail make it clear that Mr. Zimmerman knew a significant sum had been raised by his original fundraising website. We feel the failure to disclose these funds was caused by fear, mistrust, and confusion. The gravity of this mistake has been distinctly illustrated, and Mr. Zimmerman understands that this mistake has undermined his credibility, which he will have to work to repair.

“We feel the failure to disclose these funds was caused by fear, mistrust, and confusion.” This is damage control at its finest. This is why exemplary defense counsel deserves to make the big bucks, and I’ve got to hand it to Mr. O’Mara, who I totally respect and admire. That sentence says it all, but it’s a classic contortion of relativity and relevance. It’s pointing the finger one way while speaking in another direction. Why? While focusing on George’s innate fear, mistrust and confusion, which we can all relate to, its actual intent is to confuse us and take the heat off him.

If George was really fearful, mistrusting and confused, why did he lie to the court? If he did nothing wrong, what was he fearful of there, of all places? The court was the first place he should have trusted. After all, the truth shall set him free. Right?

Bond, Revoke Bond

The Seminole County Courthouse

I decided to take a trip up to the Seminole County courthouse to take a look around. I want to familiarize myself with the building. It’s a lot different from the one I got so used to during the 3 years I covered the Casey Anthony story.

I plan on attending today’s hearing regarding what evidence the public will get to see before the trial. I have a noon doctor appointment and the hearing is slated to start at 1:30.

If the picture quality is poor, it’s because I used my cell phone.