George Zimmerman, Back In the News: Are We Really Surprised?

It isn't as if George Zimmerman has shown the best judgment throughout his notariety.  If he made good choices, he wouldn't have found himself in the situation that resulted in Trayvon Martin's death. If he made good choices, Zimmerman wouldn't have been trying to deceive the trial court with his clandestine phone calls with wife Shellie regarding "Peter Pan."

It was bad enough that after his acquittal, Zimmerman visited the factory that manufactured guns like the one he killed Trayvon with and had himself photographed smiling in the factory. But are we now really surprised that a 911 call made by Shellie Zimmerman claimed Zimmerman threatened to pull his gun on his estranged wife and her father? It is only a matter of time before Zimmerman makes another poor choice that either lands him in jail or results in his death or the unnecessary death of another person.

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An Analysis of George Zimmerman's Not Guilty Verdict

Many were shocked when it was announced that a jury of six women found George Zimmerman not guilty of all charges associated with the death of Trayvon Martin.  However, it must be remembered that the jury had to follow the letter of the law in deciding Zimmerman's fate.  At least one juror has come out publicly and stated that although she believed Zimmerman "got away with murder," that because she had to follow what the law stated, she was duty bound to find Zimmerman not guilty.

To say that Zimmerman "got away with murder" but was not guilty is a confusing statement to make. So what exactly was Zimmerman charged with, and how could the jury find him not guilty? First, the actual letter of the law in Florida, in pertinent parts, is laid out here, so the exact standards by which Zimmerman was being prosecuted can be undersood.

From the very beginning, Zimmerman admitted killing Trayvon.  But Zimmerman claims the killing was in self-defense, or in legal terms was “excusable” or “justified.”  These terms are legal terms of art that mean that a perpetrator will not be punished for an act that on its face is a crime if there is a good legal reason for its commission, such as self-defense or reasonable mistake.  Essentially, a homicide is not a crime if it is justified or excused.  Zimmerman's defense team ultimately declined to invoke the controversial stand your ground Florida law and thus did not seek to gain immunity from prosecution and civil suit.  (Fla. Stat. 776.032).

The DA charged Zimmerman with second degree murder and the lesser included charge of manslaughter. At the close of evidence, the prosecution asked the judge to allow the jurors to consider third degree murder on the basis of child abuse.

The crux of the proof necessary for the charge of second degree murder (punishable up to life in prison), boils down to the commission of an "imminently dangerous" act "evincing a depraved mind regardless of human life."  Premeditation is not necessary.  Under Florida law, in order to prove that Zimmerman had a "depraved mind" the prosecution had to present evidence that he acted with "ill will, hatred, spite or evil intent."  See Leasure v. State, 105 So. 2d 5 (Fla. App. 2012).

In order to prove manslaughter (punishable up to 15 years in prison), the prosecution had to present evidence that Zimmerman committed an intentional act that caused Trayvon's death.  See Haygood v. State, 109 So. 2d. 735 (Fla. 2013).  But if there is evidence for a legally sufficient excuse or justification, no crime was committed.  Loosely speaking, the crux here is whether Zimmerman honestly and reasonably feared for his life at the time he pulled the trigger; in other words, whether Zimmerman's actions were reasonable given the circumstances. In deliberating, the jurors have to engage in Monday night quarterbacking.

The evidence that was presented in this case makes it a close call.  There was certainly enough evidence to put Zimmerman on trial for the death of Trayvon, but the jury had a tough job.  In my opinion, the most important result of this case is opening the national dialogue about the assumptions that are routinely and all too often unjustifiably made about young black men in general.

At the end of the day, whether Zimmerman committed a crime under Florida law was a close call. Perhaps the prosecutors didn't present their case well enough, perhaps the police did not gather enough evidence, or perhaps the jurors were not well-instructed on the law. I do believe it was a mistake for the prosecution to argue Zimmerman was a vigilante, purposefully acting as judge, juror and executioner.  Either way, whether the evidence was enough to convict was ultimately up to the jury.

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OJ Simpson's Chances For A New Trial

OJ Simpson's bid to get a new trial in his Nevada convictions for 19 various felony counts ranging from kidnapping, assault, robbery and the use of a deadly weapon, resulted in a five-day evidentiary hearing from May 13 to May 17, 2013, last week.  Simpson's Petition was filed with the Clark County District Court over a year ago on May 12, 2012.  Various witnesses testified, including Simpson himself, a first in any of his criminal prosecutions, and Simpson's trial attorney, Yale Galanter, whom Simpson claims was ineffective at trial, entitling Simpson to a new trial.  At the evidentiary hearing, Galanter passionately denied any error or omission on his part during Simpson's trial.

Simpson's claim of ineffective assistance of counsel is not uncommon when convicted criminal defendants have exhausted all their appeals as of right.  The claim is filed in the form of a Petition for a Writ of Habeas Corpus and is based on an allegation that the petitioner's Sixth Amendement Constitutional right to assistance of counsel was violated and thus unvalidates the petitioner's conviction.  The petition must first be filed in the trial court.  The standard for showing ineffective assistance of counsel rising to a level that violates a defendant's constitutional rights to such a degree that would require a defendant to obtain a new trial is set forth in the 1984 United States Supreme Court decision of Strickland v. Washington, as adopted by the Nevada Supreme Court.in the case entitled Warden v. Lyons.

Under the Strickland standard, in order to establish a claim of ineffective assistance of trial counsel sufficient  to invalidate a judgement of conviciton, Simpson is required to denonstrate (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that his counsel's errors were so severe that they rendered the jury's verdict unreliable.  The Nevada Supreme Court has held that the severity of the errors must have prejudiced the defendant to such a degree that but for the errors, the verdict would probably have been differenct.  According to Nevada case law, in deciding the petition the trial court need not address both components of the inquiry if Simpson makes an insufficient showing on either one.

The Strickland test is a high bar for a convicted defendant to overcome, and in Nevada, defendants' petitions have been denied even in cases where trial counsel admitted to embezzling large amounts of their clients' money, and in cases where a juror subsequently provided an affidavit indicating he witnessed the defendant's trial counsel sleeping during the trial.  Statistically speaking, it is not likely that Simpson's petition will be granted, so we may see an appeal before the Nevada Supreme Court in the future.

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Lawsuit Alleges George Zimmerman's Planned "Escape"

On December 21, 2012, a civil lawsuit was initiated by CMR Associates, Inc., against George and Shellie Zimmerman alleging breach of contract.
The Orland Sentinel reports that the lawsuit is seeking payment in the amount of $27,000 for protection services allegedly rendered.  According to the Orange Sentinel, the lawsuit also alleges an elaborate plan, cloak and dagger style, to whisk away and hide George Zimmerman from the public, including changing vehicles and clothes, and checking for GPS devices to throw off any surveillance by paparazzi or the public.
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A Plea to the Media in Light of the Newtown, Connecticut Tragedy

 Like so many of you this week, my heart is broken. The news of the terrible events from Friday that occurred at Sandy Hook Elementary School in Newtown, Connecticut have hit me hard. I cannot watch the news without openly crying, and I have yet to hug my own kids as they are away from me this weekend. There are simply no words to describe how any of us feel right now, except perhaps, incredulity as to the reason why this happened.

Ever since CNN set the standard during Desert Storm, the media gold standard has been to report the news as it is occurring. As you are all painfully aware, every media organization is on location reporting the details as they become known. This is the second most violent act of its kind, second only to the Virginia Tech mass shooting in April 2007. One question resonates regardless of which news team or which witness is being interviewed: Why? The shooter's actions, life, friends and family are being scrutinized to find the answer to that question on all our minds.

But, really, does it matter what the answer is? Does it matter why he did this? Is there any reason that could be uncovered that would make this tragedy any more bearable or less painful or any easier for our nation or the rest of the world watching to understand? No, there is not. It wouldn't matter if he was bullied as a child, or if his mother was a monster, or if he was mentally ill. So why bother ask the question?

It is human nature to try to understand, and it is what we do in the wake of a crisis like this one. So of course we ask the question and seek as much information and details as we can. But the shooter does not DESERVE our inquiry. He does not deserve our consideration that he had any reason, no matter how twisted, to commit this horendous act. He does not even deserve his NAME being mentioned or his face being shown, not by any of us, and not by the media.

My plea today, my request to the media is this: Make a conscious choice not to highlight who the people are who choose these evil acts. Report the details, but choose not to report the name, or show the face of anyone who chooses these acts. I can't help but believe that these shooters who do these horrible things do so not only knowing they will not come out of it alive, but also believing they will live on in infamy. Granted, I am no psychologist, but I believe the publicity only encourages the next nut job to carry out his insane fantasies. Let's make the choice as a society to stop giving them this immortality through infamy. Frankly, as much as I want to know the answer to "why," it is not worth giving the shooter what he sought.

ABC, CBS. CNN. NBC, FOX, and all other media outlets, PLEASE stop mentioning these people's names and showing their faces.

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Arizona's Immigration Law Is Mostly Unconstitutional, Says US Supreme Court

The United States Supreme Court handed down its long anticiated ruling in Arizona v. Untied States, putting at issue Arizona's controversial immigration law, SB 1070, passed in 2010.  The Ninth Circuit struck down the law in its entirety, and Arizona appealed to the US Supreme Court. Today, the US Supreme Court struck down three of four provisions as violating the Supremacy Clause of the US Constitution.
The Arizona law sought to criminalize the failure to comply with federal registration requirements for illegal alieans, and seeking employment or engaging in work in Arizona while being an illegal alien. SB 1070 also gave authority to Arizona law enforcement to arrest without a warrant anyone who the officer had probable cause to believe is an illegal alien, and to stop, detain or arrest to determine a person's immigration status.
The Supremacy Clause of the Constitution has been interpreted to provide that in areas where the federal government intends that its laws occupy the entire subject matter of that law, no state can enact laws that attempt to address that subject matter.  It has long been held that the federal government occupies the entire subject matter of immigration and that states cannot regulate this subject matter.  In striking down the criminal elements and the authority to arrest without a warrant granted by SB 1070, the US Supreme Court pointed out that the federal government has established that illegal alien status is a civil, not criminal matter, and that the federal government has the sole discretion to make such policy decisions regarding immigration and its enforcement.  The Court stated, "Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime."  The Court went on to state that the federal government has the power to consider equities in forming policies regarding enforcement of the federal immigration laws.
This particular point gets to the heart of the matter.  Arixona's SB 1070 sought to make criminals of immigrants, who may be hard working, otherwise law abiding residents.  This is not Arizona's call. This is the federal government's call.  The scare tactics employed by Arizona law makers that illegal aliens are all rampant, violent criminals, casts a net that ensnares workers trying to make a living and who make a positiove contribution to society.  Enacting laws based on fear and ignorance harken back to some of the darker moments in human history, and should have no part in this country's democratic society.  Additionally, the Supremacy Clause prevents the 50 states from enacting 50 different sets of immigration laws, as the federal government already has a body of law in place. 
The Court upheld the provision of SB 1070 that authorizes Arizona law enforcement to "make a 'reasonable attempt . . . to determine the immigration status' of any person they stop, detain, or arrest . . ."  The Court emphasized that SB 1070 provided that the "stop and check" provision could not be the result of racial profiling and that communication between federal and state authorities was inherent and imperative. 
Despite holding the challenge to the stop and check provision of SB 1070 as being premature because Arizona courts did not have an opportunity to interpret how it will be enforced, the Court specifically left open future challenges to the stop and check provision based on Arizona's enforcement and interpretation of its law.



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George Zimmerman Just Keeps Talking

In a stunning move, George Zimmerman's attorneys have now made the decision to release Zimmerman's statements to police following the February 26, 2012 killing of Trayvon Martin.  This move comes on the heels of the release of the jailhouse calls between Zimmerman and his wife Shellie, in which it appears the two were colluding to make false statements to the court.

How could it possibly help Zimmerman's case to release his own words to police the day after the public heard audio tape of Zimmerman and Shellie talking in code and trying to hide money? Why would Zimmerman's attorneys think the public is likely to believe Zimmerman's statements to police at this moment in time? Why when Zimmerman's credibility is in question?

In addition to his family and friends, Zimmerman would do best to ask his attorneys to stop speaking publicly too.

Update 6/28/12:
Florida prosecutors have now released more evidence in the Trayvon Martin killing.  The police report of the February 26, 2012, incident has been made public, reports the Huffington Post, under pressure from the media, despite both prosecutors' and Zimmerman's attorneys' objections.  Apparently, now Zimmerman's camp sees the wisdom in clamming up.

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George Zimmerman Is His Own Worst Enemy

Despite the majority of public opinion appearing to believe that George Zimmerman is guilty of the unjustified homicide of Trayvon Martin, there is apparently a significant, if silent, segment of the public that believed in Zimmerman’s innocence.  The Los Angeles Times recently reported that Zimmerman was able to collect more than $200,000 from his now defunct website, The Real George Zimmerman, indicating belief in his innocence.  One prominent Southern Baptist leader,  recently defended Zimmerman and criticized prominent african-american leaders, including President Obama, for their responses to the Trayvon Martin tragedy. So, does Zimmerman’s defense have legs under the Florida statute?
Florida’s Stand Your Ground statute  is very liberal in its protection of the right to self defense.  The Florida statute states “a person is justified in the use of deadly force and does not have a duty to retreat if . . . [h]e 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 . . .”   Details reported to the media about the events that night have so far been scant, but what has been made public are: the 911 call Zimmerman made, the telephone conversation between Martin and reported by his girlfriend at the time of the incident, and a few near-by witnesses who reported someone screaming for help and saw two people fighting.  Based on what has been made public, and despite Zimmerman knowing law enforcement was on the way, and despite the fact that Zimmerman followed Martin after being specifically told not to by the 911 operator, Zimmerman might have had a chance of convincing the judge or a jury to give him the benefit of reasonable doubt who might then have dismissed the charges; might have, that is, if Zimmerman’s recent alleged actions did not appear that he had gone about “working the system.”
Regardless of what really happened that night on February 26, 2012, when Trayvon Martin was killed, Zimmerman now has his work cut out for him in trying to gain back his freedom.  The recent release of the jailhouse calls between Zimmerman and his wife Shellie Zimmerman do nothing to help Zimmerman’s case in the court of public opinion.  Before each of Zimmerman’s calls was connected to Shellie, a recording advised, “This call will be recorded and subject to monitoring at any time.”
Despite this warning, in the calls between the two that were released, it appears Zimmerman thought he was being stealthy, and talked in what appears to be code: while Shellie was at the bank, she and Zimmerman talked about making “transfers.”  Zimmerman advised Shellie to make transfers from “Peter Pan” to “his,” and then from “his” to Shellie’s “every day,” and to pay off all the credit card bills.  Zimmerman talked about having “at least a hundred dollars” in his account and Shellie talked about having problems wiring “ten dollars” to Zimmerman’s account, and Zimmerman reminded Shellie to “wire ten dollars” everyday.  Shellie advised she “found a house” and Zimmerman advised to “put it under Jay’s name.”  Shellie and Zimmerman also discussed whether she “had access to ten dollars,” could “transfer ten dollars,” and to put “ten dollars in the box.”  Shellie reported going back to the bank “to do that thing” and confirmed a debit card was ordered.  Zimmerman advised Shellie he “asked Ken to double up on it, ten dollars in the morning and ten dollars in the evening,” that way Shellie could take “ten for you and ten for Suzie,” and clarified “he can only take it from Peter Pan to mine.”  Zimmerman reminded Shellie to “make the transfers.”  At one point, discussing posting bond, Zimmerman advised “if it’s more than fifty, just pay the ten percent” to a bondsman and then Shellie asked, “you don’t want me to pay a hundred dollars?”
It doesn’t take a genius to infer what “Peter Pan” means, what amount “ten dollars” really is and how much “a hundred dollars” really is.  If Zimmerman is this emboldened, on a line he knows is monitored by law enforcement, how truthful has he been about the February killing of Martin?  Glaringly absent from these calls is any concern for Martin’s family.  After this latest development, at least one analyst believes that public opinion in Zimmerman’s favor will diminish.
Zimmerman would be best advised to stop speaking publicly, and to ask his friends and family to do the same Share

Noteworthy U.S. Supreme Court Decisions of 2010

Once again, this year, I was mesmerized by the melodic cadence of renowned Professor Erwin Chemerinsky’s lecture discussing the significant U.S. Supreme Court opinions of 2010.  Here is a tongue in cheek recap of some of the more interesting decisions Professor Chemerinsky highlighted.

• Don’t expect a Fourth Amendment right to privacy when sending text messages with employer-owned equipment to your mistress while on the job.

City of Ontario v. Quon, 560 U.S. ___ (2010).

• If you want to invoke your right to remain silent, break your silence and say so.

Berguis v. Thompkins, 560 U.S. ___ (2010).

• Justice Scalia has decided the invocation of the right to counsel while being questioned automatically expires after 14 days.  Thus, the new police interrogation  techniques will be to arrest and Mirandize  a suspect, and if he invokes his right to counsel during questioning, simply wait 14 day periods before interrogating again.

Maryland v. Shatzer, 559 U.S. ___ (2010).

• Locking up your teenager and throwing away the key for anything less than murder is cruel and unusual punishment.

Graham v. Florida, 560 U.S. ___ (2010).

• Criminal lawyers who want to get their resident alien clients off, advise them to plead guilty and then misadvise them a guilty plea will not result in automatic deportation.

Padilla v. Kentucky, 559 U.S. ___ (2010).

• Corporations are people too; at least when it comes to the First Amendment and spending money in election campaigns.

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010).

Professor Chemerinsky has a unique ability to keep participants attentive with not only his distinctive style of speech, but with his humorous side notes and commentary.  This year I noticed that not only do more questions get asked in Professor Chemerinsky's CLE lectures, but the questions are generally the sort one would have asked in one's Constitutional Law class in law school to impress the professor, i.e., statements of opinion or analysis disguised as questions:  "Well, is it your opinion professor that this case modifies the (insert obscure reference to case law not being discussed) case?"

But, I have to admit, listening to my fellow attendees attempt to impress Professor Chemerinsky is almost as much fun as listening to his lecture.

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US Supreme Court Vacates Seventh Circuit's Opinion for Failure to Consider All of Death Row Inmate's Arguments

 The U.S. Supreme Court granted certiorari in Corcoran v. Indiana, 558 U.S. __ (2009), to death row 
inmate Joseph Corcoran in his appeal from the Seventh Circuit's reinstatement of his death sentence. 
Corcoran's habeas corpus Sixth Amendment challenge to his death sentence was granted by the 
district court but overturned by the Seventh Circuit.

In granting Corcoran's Habeas Corpus Petition, the district court stated Corcoran's other arguments 
against his death sentence were rendered moot. On appeal by Indiana, the Seventh Circuit failed to 
provide any explanation for disposing of Corcoran's other arguments, which included claims that the 
trial court committed various errors at sentencing, Indiana's capital sentence statute is unconsti-
tutional, prosecutorial misconduct at sentencing, and that Corcoran should not be put to death 
because he is mentally ill. The Supreme Court concluded the Seventh Circuit erred by not considering 
or explaining its disposal of Corcoran's other arguments, and remanded the case for resentencing.
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US Supreme Court Chief Justice Dissents from Court's Refusal to Hear DWI Case

AOL News reports that Chief Justice John Roberts has expressed his disagreement with the U.S. Supreme Court's decision in Virginia v. Joseph A. Moses Harris, Jr., 558 U.S, __ (2009), to deny certiorari in a DWI guilty verdict overturned by the Virginia Supreme Court. The Virginia Court overturned the conviction because the police were alerted to the defendant's drunk driving by an anonymous tipster without personally observing the defendant breaking any traffic laws prior to stopping the defendant.  
The Virginia Supreme Court concluded that the traffic stop violated the Fourth Amendment's prohibition of unreasonable searches and seizures. Justice Roberts, in a dissent joined by Justice Scalia, pointed out that state and federal courts are divided as to whether a traffic stop based on an anonymous tip to police that the driver is drunk when the investigating officer did not personally observe any traffic violations prior to the traffic stop actually violates the Fourth Amendment. Justice Roberts expressed doubt that a DWI case would fall under the general rule expressed by Florida v. J.L., 520 U.S. 266, 270 (2000), because "[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases."
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