April 18, 2014

This past week saw another addition to the never-ending story of school administrators making incredibly stupid disciplinary decisions. Awhile back, a Pennsylvania educator responded to an incident of bullying by contacting a law enforcement officer to assist in investigating the incident. That alone wasn't necessarily objectionable. Surely, some cases of bullying are so extreme as to justify the involvement of the police. However, did the school contact law enforcement to investigate the bullies? No, of course not! They wanted to investigate the victim! The victim's alleged crime? The audacious decision to video-record his own torment, without the bullies' consent. Those poor bullies! Apparently, the school believes that bullies should enjoy privacy while tormenting special-needs students! What's worse, the victim was actually convicted of "disorderly conduct!" The bullies? Not charged at all.

In fairness to the school's administration, the asinine foolishness of investigating, charging, and ultimately convicting the special-needs victim was not a solo performance; the outrage was the result of a team effort between law enforcement, prosecutors, and a Pennsylvania judge. Thankfully, after taking some time to review the case, the District Attorney's Office decided to reconsider its position, and has moved to dismiss the charges and erase the teen's conviction.

How could this have ever happened in the first place, and is it possible that something like this could happen to a student in Florida? Unfortunately, the victim in this case was not only the victim of bullying, but he was also the victim of poor leadership in his school; poor judgement from the police and prosecutors; and poor legal reasoning from the judge. While this shouldn't happen to anyone, the same mistakes that were made in Pennsylvania could occur in Florida as well.

Like Pennsylvania, the State of Florida is a "two-party consent" state, which means that in most circumstances, it is unlawful for an individual to surreptitiously record another person's "oral communications." However, both Florida and Pennsylvania law defines "oral communication" as a communication that is reasonably intended to remain private. Thus, when determining whether a defendant has impermissibly intercepted an "oral communication," the court must first determine whether the speaker of the intercepted communication had a subjective expectation of privacy when making the communication; and second, the court must determine whether society recognizes the speaker's expectation as reasonable.

In the case of the Pennsylvania bullies, it is undisputed that the intercepted communications were openly--and loudly--made in a classroom, while the bullies were actively engaged in taunting a special-needs student. It is puzzling, indeed, to understand how anyone--let alone a detective, a prosecutor, and a judge--might arrive at the mind-numbingly dimwitted conclusion that these bullies had a subjective expectation of privacy when making a disruptive commotion in a classroom full of students. However, even if one were to accept that bizarre idea, it is downright mystifying that anyone might think that society was willing to recognize the bullies' expectations as reasonable.

Florida courts have made it clear that not every subjective expectation of privacy is one that society is willing to recognize as reasonable. For instance, in Jatar v. Lamaletto, the 3rd DCA ruled that an oral communication made in private, with the intent to threaten extortion, was not a communication cloaked with a reasonable expectation of privacy, because the speaker intended to "do harm" through the communication. Likewise, communications that harass and bully are intended to "do harm," and thus are not deserving of the protections of Florida law. It's really not a difficult concept to grasp.

Of course, the victim in the Pennsylvania bullying case wasn't actually charged with wiretapping. Presumably, law enforcement recognized the absurdity of charging a victim of bullying with a felony, and opted instead to charge the teen with a misdemeanor. Why anyone felt it necessary to prosecute the victim with anything remains a mystery.

According to reports of the teen's delinquency hearing, the prosecution's theory of guilt was deliciously inane. It went something like this: surreptitiously recording an incident of bullying "created a physically offensive condition," because the surreptitious recording was a "crime," and committing a crime is physically offensive. That's right; the bullying didn't create a "physically offensive condition," despite the bullies' admission that they were trying to scare the victim; but the victim's thumbing of a "record" button on an I-Pad, without first obtaining written waivers, did create a physically offensive condition. Doesn't make sense, does it? Well, it apparently made sense to Judge Maureen McGraw-Desmet, who reached the unbelievable conclusion that the victim had committed a crime.

Truly, it doesn't appear as though the court engaged in any critical legal analysis at all. While it is preposterous to suggest that the victim committed the crime of wiretapping, it is doubly preposterous to suggest that he committed the crime "disorderly conduct." The treatment of the victim in this case was offensive to intelligence, fairness, and justice. It's one thing to suffer bullying at the hands of classmates; it's another thing to suffer bullying at the hands of the system. The judge, the school, and law enforcement owes this kid an apology.


April 9, 2014

On November 17, 2013, twenty-year-old Kayla Mendoza (now aged 21) allegedly drove a car down the wrong way on Broward County's Sawgrass Expressway, causing a fatal collision that took the lives of two young women: Kaitlyn Ferrante and Marisa Catronio, both 21 years of age. According to reports, Ms. Mendoza's blood-alcohol level was nearly twice the legally permissible limit for a driver: 0.15 grams of alcohol per 100 milliliters of blood.

After months of investigation, the Florida Highway Patrol has finally arrested Ms. Mendoza, recommending charges of D.U.I. Manslaughter, Vehicular Homicide, and Driving Without a License Resulting in Death. Due to the principle of double jeopardy, Ms. Mendoza may only be sentenced once per homicide, which means that she faces a maximum penalty of 30 years behind bars.

D.U.I. Manslaughter is a particularly tragic offense, not least because of the terrible loss of innocent life that results from drunk driving. However, the culpability of an individual accused of D.U.I. Manslaughter is typically different from that of an individual accused of murder, because in the case of D.U.I. Manslaughter, the killing is not intentional (even if it is reasonably foreseeable). In some cases, prosecutors and judges are willing to show a level of mercy toward D.U.I. Manslaughter defendants, particularly when the accused individual is young (although, it should be noted, the crime of D.U.I. Manslaughter carries a minimum mandatory 4 year prison sentence). Making "bad choices" early in life--even tragically "bad choices"--is a far cry from making "evil choices," and the criminal justice system is not unsympathetic to that reality.

However, Ms. Mendoza presents an example of an individual who is particularly unlikely to endear sympathy. Not only did she drive the wrong way on an expressway at an "extremely fast" speed, but hours before the crash, she allegedly tweeted the message: "2 drunk 2 care." Not surprisingly, Judge John "Jay" Hurley stated his concern that Ms. Mendoza "knew she shouldn't be driving," and ordered a bond of $600,000, plus house arrest.

This evidence highlights the new prominence that social-media plays in the investigation of criminal acts. When individuals feel the impulse to publicly share their every thought and daily activity with the entire world, investigators have a powerful tool to reconstruct events. According to the New York Daily News, Ms. Mendoza referred to herself as the "Pothead Princess" on her twitter feed, although Ms. Mendoza's family alleges that someone hacked into Ms. Mendoza's account, prior to the accident.

Regardless of the infamous tweet, the legal case against Ms. Mendoza is straightforward. The State must prove the following elements, beyond and to the exclusion of every reasonable doubt:

1. Ms. Mendoza drove or was in actual physical control of a vehicle.
2. While driving or in actual physical control of the vehicle, Ms. Mendoza had a blood
alcohol level of .08 or more grams of alcohol per 100 milliliters of blood.
3. As a result of operating the vehicle, Ms. Mendoza caused or contributed to the cause
of the death of Ms. Ferrante and/or Ms. Catronio.

With the facts as we know them, it is rather easy to prove these elements. According to a probable cause affidavit, the first officer to arrive at the scene of the accident found Ms. Mendoza unconscious behind the wheel of a vehicle. The officer found no indication that anyone else was in the vehicle. Multiple witnesses observed Ms. Mendoza's vehicle driving at a high rate of speed. Undoubtedly, accident reconstruction models will show that Ms. Mendoza's vehicle was traveling at a high rate of speed at the moment it made contact with Ms. Ferrante's and Catronio's vehicle. This evidence firmly establishes the first element of the offense. Not only was Ms. Mendoza in actual physical control of the vehicle, but she was driving the vehicle.

According to reports, Ms. Mendoza's blood alcohol level registered at 0.15 grams of alcohol per 100 milliliters of blood. That evidence firmly establishes the second element of the offense.

Lastly, multiple witnesses testified that Ms. Mendoza's vehicle was driving the wrong way on the Sawgrass Expressway when it collided into the victims' vehicle. Presumably, a Medical Examiner will testify that the collision caused the death of both victims. This evidence will clearly establish the third element of the offense.

Through the discovery process, Ms. Mendoza's legal team will certainly explore any possible defenses. There's no reasonable way to dispute that Ms. Mendoza was driving on the wrong side of the road and plowed into the victims. Indeed, from the facts as we know them, it appears that Ms. Mendoza's best course of action is to work for a negotiated resolution, or to prepare for a thorough evidentiary sentencing hearing after a direct plea to the Court. However, as unlikely as it might appear, there may be issues that the defense may exploit, if the defense feels compelled to take the case to trial.

First, they will want to look at the collection and testing of Ms. Mendoza's blood, as it is the best evidence showing that Ms. Mendoza was driving while impaired. If the blood was collected improperly, or if the blood was not properly stored, or if investigators failed to maintain a chain of custody over the blood, it is possible that the court might suppress the admissibility of that evidence.

Second, they will want to inspect what is left of Ms. Mendoza's vehicle. While witness testimony will certainly establish that the vehicle was operable at some point while Ms. Mendoza was driving, perhaps there is some mechanical explanation as to why the vehicle was traveling at such a high rate of speed. Even if it is highly unlikely and improbable, there might be a mechanical explanation as to why her vehicle entered onto the wrong way of the Sawgrass Expressway. If, at some point before the accident, the vehicle became inoperable, Ms. Mendoza might have a defense, if she can also create a doubt in a jury's mind that she wasn't impaired when she was driving. That's certainly a tough case to make.

Third, they will want to explore the possibility that someone else had access to her Twitter account, to explain the damning tweet: "2 drunk 2 care." Indeed, Ms. Mendoza's family is already making that argument. Nevertheless, the prosecution will likely have no trouble admitting the tweet into evidence, if they can call witnesses to testify that the account in question was an account used by Ms. Mendoza. In order to authenticate the tweet for purposes of admissibility, the State need only present prima facie evidence that the tweet is a statement from Ms. Mendoza. The State may meet this low burden through circumstantial evidence. Regardless, even if the tweet is admissible, the defense will want to investigate any means by which they may call into question the tweet's authenticity.

Fourth, as distasteful as it sounds, the defense will want to investigate what the victim driver was doing prior to the crash, in order to determine whether the victim was driving while impaired. From what is publicly known about the case, there is absolutely no reason to believe that the victim was impaired. The Medical Examiner's report should confirm that the victim did not have anything in her system at the time of the crash. In the event that she did have some alcohol in her system, the defense might theoretically make the case that Ms. Mendoza did not contribute to, nor cause, the death of the victims. This is an extraordinarily unlikely defense, because the evidence will establish that Ms. Mendoza was driving on the wrong side of the road. Nevertheless, it is worthwhile to explore every possible avenue of defense, regardless of the ultimate strategic decision of how to defend the case.

Ultimately, the families impacted by this horrific tragedy will have to live through the difficult process of criminal litigation. Hopefully, those in pain will find some solace in the knowledge that the community is reacting to the tragedy and that the case is being faithfully prosecuted.


January 23, 2014

Apparently, Justin Bieber has spent the morning in the custody of the Miami Beach Police Department. His alleged crimes? Spending the day smoking pot, popping pills, drinking alcohol at a nightclub, and drag-racing a Lamborghini at 4 o'clock in the morning in a residential neighborhood. Or, as the 19-year-old Justin Bieber might say: a typical Wednesday night.

Of course, in today's social-media universe, there's already video of the traffic stop online. Apparently, a gaggle of shrilly "Beliebers" were also out at 4 o'clock in the morning, following their favorite troubled teen icon through the streets of Miami Beach. Not surprisingly, the girls were totally incompetent in their attempt to film Bieber, and mostly just captured a series of blurry images, accompanied by off camera screeching: "THERE HE IS!!!!! PLEASE!!!! PLEASE!!!! OH. MY. GAWD!!"

So let's break down the law, and what we know about the case, as reported in the media.

According to a Miami Beach Police Department probable cause affidavit, an officer observed Bieber in a yellow Lamborghini. Bieber's Lamborghini was allegedly next to a red Ferrari, both of which were heading northbound on Pine Tree Drive. The officer observed two S.U.V.'s that appeared to be blocking traffic, so as to create "an open road" for a race. The officer then allegedly observed "both vehicles start a contest of speed (drag racing) from a start." The officer estimated the speed to be "about 55-60 MPH."

Pursuant to Florida Statute 316.191(2)(a), to prove the crime of "Drag Racing," the State must prove that Bieber was driving a motor vehicle in a "race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration, or for the purpose of making a speed record on any highway, roadway, or parking lot." "Drag Racing" is further defined as: "the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit."

Taking the officer's probable cause affidavit at face value, it does appear that the officer had valid probable cause to arrest Bieber for "Drag Racing." However, it should be noted that the officer simply states that he observed a "contest of speed (drag racing)," without specifically stating that he observed Bieber attempting to competitively "outdistance" the Ferrari. Nevertheless, the officer's observation of the Lamborghini and the Ferrari starting a "contest of speed" "from a start," surely suffices for the purpose of probable cause.

Proving the crime of "Drag Racing" beyond a reasonable doubt is another thing altogether, but it is doubtful that Bieber will have any desire to drag this matter out in litigation. See what I did there?

Interestingly, the officer did not actually arrest Bieber for "Drag Racing." Rather, he arrested Bieber for "Resisting Arrest Without Violence" (RWOV). From my experience representing clients in Miami Beach, the Miami Beach Police will charge just about anybody for "Resisting Arrest Without Violence," no matter how outlandish the allegation (note to Miami Beach Police: asking "why am I being placed under arrest" is not a crime). That said, taking the probable cause affidavit at face value, the officer seems to have had a legitimate basis to arrest Bieber for RWOV.

According to the affidavit, when the officer pulled Bieber over, Bieber exited the vehicle and "kept going into his pants pockets." In legalese, when an individual "keeps going into his pants pockets," it is called "furtive movements." Typically, a police officer cannot conduct a "cursory pat-down" of an individual during a traffic stop if the officer only has a generalized concern for safety. Rather, under Florida Statute 901.151 and relevant case law, an officer may only conduct a "pat-down" if the officer has a reasonable articulable suspicion that the detained individual might be armed. "Furtive movements," in which a detained individual fidgets, or places his hands in his pockets as though to conceal something, provides an officer with a legitimate basis to conduct a "pat-down."

Allegedly, when the officer attempted to conduct a "pat-down" of Bieber, the upset pop-star refused to comply with the officer's lawful order to turn around and keep his hands on the vehicle. Under Florida Statute 843.02, it is unlawful for any person to "resist, obstruct, or oppose" any law enforcement officer who is "engaged in the lawful execution of a legal duty." Thus, taking the probable cause affidavit at face value, it does appear that Bieber resisted a lawful order from a law enforcement officer. In fact, considering how Miami Beach Police have reacted to Resisting Without Violence in the past, Bieber should count himself lucky that he wasn't tasered to death.

However, the investigation did not end with Bieber's arrest. According to the probable cause affidavit, Bieber smelled of alcohol, had bloodshot eyes, and a look of "stupor" on his face. The affidavit claims that Bieber denied being drunk, and that officers afforded Bieber the opportunity to perform "SFST's." For the uninitiated, this means that officers asked Bieber to perform Standardized Field Sobriety Tasks. The affidavit references a "DUI Test Report," which as of publishing, is not yet publicly available. The affidavit further states that Bieber did not perform the Field Sobriety Tasks "to standards." The affidavit also claims that Bieber agreed to a "breath test" as well as a "drug evaluation."

According to the Miami-Herald, Bieber told police officers that "he had a beer, was under the influence of anti-depressants, and had been smoking marijuana all day." The Herald also sources Miami Beach Police Chief Raymond Martinez as saying that "tests showed that Bieber was under the influence of drugs."

So what does all of this mean?

To begin, it means that Bieber is being charged with D.U.I. This is not as straightforward as it might seem. Typically, to prove the crime of D.U.I., the state must prove beyond a reasonable doubt that the defendant drove or was in actual physical control of a vehicle, while under the influence of alcohol, a chemical substance, or a controlled substance, to the extent that the defendant's normal faculties were impaired. "Normal faculties" are defined as including "the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives."

The reason an officer will ask an individual to perform Field Sobriety Tasks, is so that the officer may observe how well--or how poorly--an individual has control of his/her "normal faculties." If an individual refuses to perform Field Sobriety Tasks, the officer will have less evidence to prove that the individual's "normal faculties" are impaired. Unfortunately for Bieber, he agreed to perform the Field Sobriety Tasks, and it appears likely that the State will use his performance as evidence of Bieber's alleged guilt .

Of course, the State may also prove the crime of D.U.I. a second way. The State may also prove the crime of D.U.I. by proving that the defendant was operating or in actual physical control of a vehicle, while having a breath-alcohol level of .08 or more grams of alcohol per 210 liters of breath. This is why the police asked Bieber to provide a sample of his breath for testing.

If an individual refuses to provide a sample of breath, the individual's driver's license will be automatically suspended for 1 year. Of course, if an individual refuses to provide a sample of breath, the State will have no direct evidence of the individual's breath-alcohol content. Thus, if an individual refuses to provide a sample of breath, it is just about impossible for the State to prove an individual is guilty of having a breath-alcohol level above .08.

Nevertheless, just as Bieber agreed to perform Field Sobriety Tasks, it also appears as though Bieber agreed to provide a sample of his breath.

For Bieber, however, the lawful limit is well below .08. Under Florida Statute 322.2616, individuals under the age of 21 may not drive or be in actual physical control of a vehicle with a breath-alcohol level of .02. What is more, under this statute, an officer may detain any individual under the age of 21 for the purposes of testing the individual's breath, if the officer has probable cause to believe that the individual is driving a vehicle while under the influence of alcohol--regardless of impairment. Thus, for all intents and purposes, law enforcement had the right to detain Bieber and take Bieber to a Breath-Alcohol Testing Center the moment law enforcement smelled alcohol on Bieber's breath.

It is entirely possible, of course, that Bieber provided a sample of breath that tested below .02. That, however, would not mean that Bieber is out of the water, so to speak. Rather, law enforcement would next ask Bieber to provide a sample of urine, so as to determine whether Bieber was under the influence of a chemical substance or a controlled substance. If it is true that Bieber admitted to taking anti-depressants and smoking pot, it is more than likely that any urine sample would reveal that Bieber was under the influence of one or more controlled substances.

Which brings us to the Herald's assertion that "tests showed that Bieber was under the influence of drugs." There is simply no way that a sample of Bieber's urine has already been tested for drugs. That process can take weeks. However, it is entirely possible that Bieber submitted to a Drug Influence Evaluation. A Drug Influence Evaluation is somewhat similar to a battery of Field Sobriety Tasks, except that it is conducted by a specialized officer, who is designated a Drug Recognition Expert (or "D.R.E."). Unlike Field Sobriety Tasks, which are designed for observing an individual's control of his/her "normal faculties," a Drug Influence Evaluation is designed for observing specific indicators of drug use. The exercises in a Drug Influence Evaluation are different than the exercises in a battery of Field Sobriety Tasks. What's more, the D.R.E. administering the Drug Influence Evaluation can testify in court as an expert witness, and share his/her expert opinion as to the defendant's drug impairment.

Reading between the lines, it is entirely possible that when Chief Martinez claimed that "tests showed Bieber was under the influence of drugs," Chief Martinez was referring to the results of a Drug Influence Evaluation.

Lastly, law enforcement is alleging that Bieber's Georgia driver's license was expired, which is a second-degree misdemeanor.

Got all of that? Good. Now, let's look at the possible penalties.

First, the D.U.I. is a misdemeanor offense, punishable by a maximum jail sentence of 6 months. If Bieber doesn't receive a diversion program for his D.U.I., he can expect to serve up to 12 months on probation, suffer a 6-month driver's license revocation, pay a minimum $500 fine (maximum $1,000), and have at least one vehicle, which is registered in his name, immobilized for a period of 10 days.

Second, the Resisting Without Violence charge is a First Degree misdemeanor, punishable by up to 1 year in jail, and a maximum fine of $1,000.

Third, the Expired Driver's License charge is a Second Degree misdemeanor, punishable by up to 60 days in jail, and a maximum fine of $500.

Likely, Bieber won't serve anymore time in jail. A more realistic scenario is that he will go on probation. During the term of his probation, he'll have to stay out of trouble. For Bieber, who has faced allegations of driving recklessly and causing $20,000 worth of egging damage, this might prove difficult.

In the final analysis, it is clear that Justin Bieber is a troubled individual. He exists in a peculiar caste within American society: the nobility of celebrity. It would be remiss to fail to mention that an investigation is currently underway in Opa-Locka, Florida, in Miami-Dade County, to investigate an unlawful police escort, which allegedly convoyed Bieber's entourage from the airport to a series of strip-clubs in South Florida. Only a bloated sense of narcissistic entitlement would propel a 19-year-old to recklessly drag-race through the streets of a residential neighborhood on a Thursday morning, while under the influence of alcohol, marijuana, and anti-depressants, and then respond to a police officer with the words: "why the f**k are you doing this? What the f**k is this about." It is important in a society that rejects formal notions of class distinction, and which prides itself on the Rule of Law, to disabuse Justin Bieber of the notion that his social status cloaks him with the privilege of violating the law; or that it affords him special treatment. That said, it is equally important that the law treat Justin Bieber no different than any other similarly situated defendant.

Here's to hoping that Florida's criminal justice system is equal to the task.

I Am Altering the Deal, Pray I Don't Alter it Any Further

November 15, 2013

Although this blog is dedicated to the field of criminal law, I cannot help but write about the precipitous decline that the Rule of Law has suffered in this country.

Yesterday, the President announced a "fix" to the so-called "problem" of Obamacare, in which millions of Americans have lost their health insurance coverage as a result of the law's mandatory, minimum coverage requirements. Of course, calling this feature of the law a "problem" is absurd. Obamacare was specifically designed to impose minimum, mandatory coverage requirements for health insurance plans. No matter how many times the President claimed that everyone "could keep their health insurance plan," the President, as well as his allies in Congress, purposefully and specifically designed the law so that some insurance plans would no longer meet minimum requirements. Calling this feature of the law a "problem" is like claiming that the emergency brake on a car is a "problem," simply because the car won't move while the emergency brake is engaged. It's part of the design.
Nevertheless, because President Obama purposefully deceived the American people on this point, the cornerstone of Obamacare has suddenly become a "problem" that needs a "fix." In a constitutional republic with an unparalleled respect for the Rule of Law, legislative "problems" are typically "fixed" through the legislative process. Cause, you know...it's the law.

However, in the Era of Obama, the Rule of Law is nothing more than an annoying obstacle on the pathway to a progressive paradise. So, instead of looking to Congress to "fix" what is the central component of Obamacare, the President is simply notifying state insurance commissioners that insurance companies have "federal permission" to violate the law, at least until after the 2014 midterm elections. The President calls this "enforcement discretion." Never mind his oath to "faithfully execute" the Office of the Presidency. President Obama's idea of "faithful execution" is to not execute the very law that he claims is his greatest presidential achievement. In the Era of Obama, suggesting a legislative repeal of the law, or suggesting a legislative defunding of the law, is tantamount to "hostage taking"; simply ignoring the law, however, is considered an appropriate "fix."

All of this nonsense was foreseen by the Nobel Prize winning economist F.A. Hayek. Having left Austria before the Nazi takeover of his country, Hayek penned the political masterpiece, The Road to Serfdom. In a chapter entitled, "Planning and the Rule of Law," Hayek expounds upon the inherent conflict between the Rule of Law and centralized economic planning. Whenever a centralized bureaucracy attempts to equalize the conditions of society (for instance, by mandating that everyone purchase a federally certified insurance plan), the bureaucracy imposes economic costs that fall unevenly upon the population, and which often threaten the viability of the bureaucratic scheme. Thus, the bureaucracy is forced to make ad hoc, arbitrary exceptions to its own regulations, in order to achieve greater "fairness." These ad hoc, arbitrary exceptions are the very antithesis to the Rule of Law, which only functions appropriately when it is evenly, consistently, and blindly applied to a given set of facts.

Here's how Hayek puts it: "To say that in a planned society the Rule of Law cannot hold is, therefore, not to say that the actions of the government will not be legal, or that such a society will necessarily be lawless. It means only that the use of the government's coercive powers will no longer be limited and determined by pre-established rules. [T]o make...central direction of economic activity possible, [the law]must legalize...arbitrary action. If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal--but its actions are certainly not subject to the Rule of Law. By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable."

Hayek clarifies this concept in a footnote, writing: "The conflict is thus not...between liberty and law...The conflict is between different kinds of law--law so different that it should hardly be called by the same name: one is the law of the Rule of Law, general principles laid down beforehand, the 'rules of the game,' which enable individuals to foresee how the coercive apparatus of the state will be used, or what he and his fellow-citizens will be allowed to do, or made to do, in stated circumstances. The other kind of law gives...the authority the power to do what it thinks fit to do. Thus, the Rule of Law could clearly not be preserved in a democracy that undertook to decide every conflict of interest, not according to rules previously laid down, but 'on its merits.'"

This later type of law--the ad hoc, arbitrary law, which empowers the bureaucracy to apply a different set of rules for every conceivable problem--is precisely the type of law that the Obama Administration embraces. When Obamacare was passed into law, the government effectively set down a series of rules that imposed certain obligations on individuals, employers, and health-insurance providers. The government gave everyone three years to prepare for the implementation of the law. Everyone knew the rules beforehand. The health-insurance providers invested tens of millions of dollars to review their existing insurance products, and to create new insurance products that would comply with the requirements of the law.

Then, with the snap of his fingers, the President changed the rules, all by himself. All of the effort and resources that the insurance industry invested into complying with the law? A waste. They could have simply waited another year. They should have known that the President might just change his mind. And what about the individuals who purchased new, more expensive plans, because they were told that the law required it? Too bad. They should have just waited to see if the President would change his mind about enforcing the law.

Of course, the disregard for the Rule of Law goes even deeper. The President is not only stating that he will not enforce the law for another year; he is also qualifying his refusal to enforce the law on the condition that the insurance companies notify consumers about how the old policies violate Obamacare, and how the consumers have the option to purchase new policies on the Obamacare exchanges. In other words, the President is inventing a new rule--without legislative approval--while simultaneously refusing to enforce a duly enacted law. A law that he himself championed and helped craft. It is truly the "theatre of the absurd" when progressives confidently thump their chests and proclaim, "Obamacare is the law of the land," while all the while changing the rules, or ignoring the law at their whimsical pleasure.

Indeed, this entire farce illustrates the absurdity of the notion that centralized, redistributive economic planning is compatible with a democratic, limited system of government, which exists to protect individual liberty. Truthfully, the term "Democratic Socialism" is an oxymoron. There is no democracy without the Rule of Law; and there is no socialism--no centralized economic planning--with the Rule of Law.

It's horrible that people are losing their health insurance plans; particularly considering that they were told that they would not lose their plans. The solution, however, is not to haphazardly change the rules, or grant arbitrary waivers and extensions to an unworkable bureaucratic quagmire of regulations. The solution is to legislatively scrap the law, through the constitutional process that we call: the Rule of Law.


August 20, 2013

Earlier this month, a Miami man allegedly killed his wife and photographed her body, before posting the photograph on Facebook. Advertising the alleged crime, the man posted to his Facebook account: "I'm going to prison or death sentence for killing my wife love you guys miss you guys take care Facebook people you will see me in the news my wife was punching me and I am not going to stand anymore with the abuse so I did what I did I hope u understand me."

Fascination with the ghoulish photo has generated national interest in the case. The defendant, Derek Mendina, will now forever be known as the "Facebook Killer."

It's quite surprising, actually, that a similar incident hasn't occurred earlier. In today's world, where social media provides validation for every narcissistic impulse and creates an open platform to achieve "15 minutes of fame," it is a wonder that someone hasn't already uploaded a video of a murder on YouTube or Vine, or hasn't already posted grizzly photos on Facebook or Instagram. Hopefully, the novelty of the "Facebook Killer's" actions remain novel, and aren't repeated elsewhere.

Indeed, the novelty of posting pictures of the crime scene to Facebook, as well as posting an apparent "confession," make the case appear fairly open and shut. However, over at Random Pixels (a terrific South Florida blog), Bill Cooke has written a very interesting piece, in which he uses the 1966 killing of Theresa Rix to illustrate an important point: no criminal case is truly hopeless.

To be sure, the recent trial of Casey Anthony also illustrates the point well. While Casey Anthony never admitted to killing her child, the overwhelming weight of the evidence clearly removed any reasonable doubt. In the 1966 case of Theresa Rix, the defendant did admit to killing Ms. Rix, but the defendant claimed that he killed Ms. Rix accidentally. To be more precise, the defendant claimed to have accidentally bludgeoned the woman to death, before stuffing a rag in her mouth, tying her up, and sealing her in a trashcan with liquid cement. The jury let him walk free. The fact is, when a case is presented to a jury, any outcome is possible; no matter the merit of the case.

As we have also seen in Miami Dade County, any outcome is possible in a "Stand Your Ground" hearing; no matter the merit of the case. Greyston Garcia (who, it should be noted, was tragically murdered this past July), admitted to chasing down an unarmed burglar and stabbing the man to death (the alleged burglar did have a folded pocket knife in his pocket, but he never wielded it). Despite Mr. Garcia's initial denials that he killed the man; and despite the evidence that Mr. Garcia pawned property that Mr. Garcia lifted from the dead man's body; a judge dismissed the homicide charges against Mr. Garcia, on the theory that Mr. Garcia acted in compliance with Florida's "Stand Your Ground" statute.

Is it possible that Derek Mendina will likewise claim to have acted pursuant to "Stand Your Ground?" In Miami, anything is possible.

Obviously, many of the alleged facts are inconsistent with a valid claim of "Stand Your Ground." First, Mr. Medina photographed the body and posted it to Facebook. That is not behavior that is seemingly consistent with someone who has just used deadly force in self-defense. Second, he not only admitted that he killed his wife, but he also admitted that he thought he would go to prison or receive the death sentence for killing his wife. Clearly, that sentiment is indicative of a guilty conscious. Third, in his alleged statement to police, he admitted that (1) on a prior occasion, he had pointed a gun at his wife; (2) prior to the shooting, he retreated upstairs to get his gun; and (3) while wielding the gun, he reengaged in an argument with his wife. Undoubtedly, these admissions all seem to foreclose the possibility of dismissal.

Nevertheless, the facts in the Greyston Garcia case were equally inconsistent with a valid "Stand Your Ground" claim. Mr. Garcia not only didn't report his use of deadly force to authorities, but he also rifled through his victim's belongings and pawned the stolen property for money. When initially questioned about the killing, Mr. Garcia lied to authorities. He didn't admit his involvement until the detectives confronted him with video footage of the killing. Moreover, just as Mr. Medina allegedly armed himself before going downstairs to confront his victim, so too did Mr. Garcia admit to arming himself before going downstairs to confront his victim. However, unlike the case of Mr. Medina, Mr. Garcia actually chased down his victim, for more than a block, before stabbing the victim to death.

Mr. Medina, from the moment he posted the ghoulish images on his Facebook page, laid the seeds for a "Stand Your Ground" defense. In the same post in which he admitted to the killing, he also stated that the victim was "punching" him. Mr. Medina also implied that he was the target of "abuse;" perhaps, systematic abuse. In his statement to detectives, it appears that he claimed that his wife pulled a knife, prior to the shooting.

If a judge was willing to throw out Mr. Garcia's case, it isn't impossible to believe that a judge might toss out Mr. Medina's case. Then again, thanks to the national media attention, the judge in the Medina case will undoubtedly feel pressure not to grant dismissal. That said, if anything is certain in Miami, it's this: anything's possible. Just ask the man who killed Theresa Rix.


August 19, 2013

Amiya Fernando, of www.topcriminaljusticedegrees.org, reached out to me with an "infographic," which makes the case that Florida's "Stand Your Ground" law is racially biased. I would post the inforgraphic in its entirety, but I fear that it will take up all of the space on my page. If you want to see it, follow the link: http://www.topcriminaljusticedegrees.org/stand-your-ground/

Needless to say, I strongly disagree with the "infographic's" suggestion. However, before I break down some of my objections, let me make a few preliminary points.

First, I believe the law needs some limited reform. As currently written, Florida's "Stand Your Ground" law has led to some absurd results in the courtroom. In Miami-Dade County, murder charges against Greyston Garcia were dismissed, based upon a judge's finding that Mr. Garcia acted in compliance with the law. According to the evidence in the case, Mr. Garcia chased down his un-armed victim and then brutally stabbed the man to death. Not only did Mr. Garcia not call the police to report the killing, but he also took a bag that the victim was carrying and sold the bag's contents at a local pawn store. Almost anywhere on earth, those facts amount to a robbery-homicide. In Miami-Dade County, those facts amounted to "Stand Your Ground."

It is arguable, of course, that the judge in the Greyston Garcia case misapplied the law. A different judge, facing the same facts, might have ruled differently. Nevertheless, where the law creates a mechanism that forces the State to put on a mini-trial, in which the defendant need only meet the low burden of a preponderance of the evidence to receive a dismissal, it is inevitable that some judges will dismiss charges, despite the merit of the prosecution's case.

Additionally, "Stand Your Ground" seriously inhibits law enforcement from making timely arrests. Typically, law enforcement can arrest an individual when there is probable cause to believe that the individual has committed each element of a criminal offense. Prior to "Stand Your Ground," this meant that law enforcement could arrest a suspect for homicide if there was probable cause to believe that the suspect killed another human being. While the arrested individual could still raise justifiable homicide as a legal defense, justifiable homicide remained an "affirmative defense," requiring the defendant to offer some evidence in a court of law.

Under "Stand Your Ground," however, law enforcement must presume that an individual acted in self-defense. Thus, before making an arrest for homicide, law enforcement must not only have probable cause to believe that the suspect killed another human being, but they must also have probable cause to believe that the killing was not committed in justifiable self-defense. In many investigations, where there are no living witnesses, it takes time for law enforcement to establish probable cause to believe that the killing wasn't justifiable. In the time it takes to overcome the presumption of what should be an "affirmative defense," suspects can easily flee the jurisdiction.

Another problem with Florida's "Stand Your Ground" law is that it was poorly drafted. This poor drafting leads to inconsistent results. For instance, F.S. 776.032 provides immunity from prosecution if the defendant acted in lawful self-defense, pursuant to F.S. 776.012 (Use of Force in Defense of Person), F.S. 776.013 (Home Protection), or F.S. 776.031 (Use of Force in Defense of Others). While the language of F.S. 776.013 (Home Protection) does not afford immunity to defendants who are engaged in unlawful activity at the time force is used, neither F.S. 776.012, nor F.S. 776.013, includes similar language. In other words, while a convicted felon in unlawful possession of a handgun cannot use the handgun to defend himself during a home invasion (because the possession of the handgun is unlawful), the same convicted felon can use the handgun to defend himself outside of his home. What's more, the convicted felon can use the handgun to kill another person if the convicted felon reasonably believes that the other person is about to commit a "forcible felony." Under Florida law, the mere burglary of an unoccupied car, which results in no violence whatsoever, is a "forcible felony." Clearly, this is absurd. Very likely, the drafters of the law never intended to codify the right of convicted felons to shoot down a person burglarizing a car.

These issues deserve discussion. Both conservatives and liberals should agree that the application of the law has led to some unintended consequences. We can do better.

However, none of these issues have anything to do with race. Making Florida's "Stand Your Ground" law into a racial fault-line forecloses the possibility of reasonable, common-sense discussion. A cynic might even say that injecting race into the issue serves only to excite a particular political constituency, with the sole purpose of mobilizing partisan voters for an upcoming election cycle. If the objective is to reform "Stand Your Ground," injecting race into the issue is exactly the wrong tactic to take.

With that said, let's get to the substance of the "infographic."

1. If "Stand Your Ground" Is Anything, It Isn't "Black and White."

One thing is for sure: the application of Florida's "Stand Your Ground" law is highly contextual. Whether the law applies to a given case requires a diligent, case-by-case, fact-by-fact review. Was the defendant allegedly defending himself outside of his home or inside of his home? If outside of the home, was the defendant inside of a car or outside of a car? If outside of a car, did the defendant provoke the incident or was the defendant attacked? If the defendant provoked the incident, how did the defendant provoke it? If the defendant physically provoked the incident, did the defendant withdraw from physical contact prior to the use of deadly force? If the defendant did withdraw from physical contact, did the defendant have an avenue to retreat, prior to using deadly force? If the defendant was in his car, what was he doing in his car? Was he using the car to engage in criminal activity? If the defendant was in his home, was he engaged in criminal activity at the time? If the defendant was in his home, did the deceased have a right to be in the home? These questions are all relevant and material to any analysis of a defendant's rights under "Stand Your Ground." Clearly, it is not as simple as "black and white."

For this reason, drawing a conclusion based upon bland statistics, which tell you nothing about the individual merit of each case, isn't helpful. Certainly, if statistics suggest a racial disparity in the application of the law, the suggestion requires further investigation. However, the statistics alone are not enough to reach a definitive conclusion. Those questioning the existence of racial disparity in the application of "Stand Your Ground" should not focus only on the skin color of the individuals exonerated under the law; rather, individuals should question whether there is a disparity in outcome between white and black defendants with similar cases.

Furthermore, if there is a disparity between similarly situated white and black defendants, what is the nature of the disparity? Are white defendants, who shouldn't receive dismissal, receiving dismissal; or, are black defendants, who should receive dismissal, not receiving dismissal? To what extent is it a combination of both? Surely we don't want to "even the playing field" by denying a mechanism for dismissal to defendants who actually deserve dismissal.

2. The Duty to Retreat is Unfair and Inconsistent With Human Nature

For some reason, opponents of Florida's "Stand Your Ground" law have rallied around the notion that the "Duty to Retreat," if applied to the George Zimmerman case, would have led to Mr. Zimmerman's conviction. This is ridiculous. As the facts in the Zimmerman case clearly show, Mr. Zimmerman was pinned-down on his back at the time he pulled the trigger. Even if he were required to retreat, he had nowhere to retreat. His back was up against the wall, so to speak.

The "infographic" quotes Sir Matthew Hale as saying: "private persons are not to be trusted to take capital revenge one of another." This, of course, is true. The law never has, nor does it now, allow individuals to take "revenge" on one another. One gets the sense, however, that proponents of "Duty to Retreat" are really just saying: "private persons are not to be trusted," period.

When individuals are placed in imminent danger, the human body responds with what biologists call the "fight or flight" response. The "Duty to Retreat" essentially requires individuals to ignore one half of this instinctual response, in favor of running away. Depending upon the circumstances, the act of retreat could possibly put an individual at greater danger. While it is true that the "Duty to Retreat" only applies when safe retreat is reasonably possible, it nevertheless forces individuals to second-guess their instincts in the midst of a life-or-death struggle.

The Supreme Court has described the right of "self-defense" as an "inherent right." To require individuals to retreat, before exercising an "inherent right," is to place individuals in an unfair, unnatural position. When faced with unlawful force or violence, individuals have an inherent, fundamental, natural right to stand their ground, and meet force with force.

3. The "Infographic" Demonstrates That a Majority of the Country Does Not Support "Duty to Retreat."

Belying the "infographic's" implication that "Stand Your Ground" is some sort of fringe legal theory, which deserves comparison to Jim Crow laws, the maps on the graphic clearly establish that a large majority of the country rejects the notion of a "Duty to Retreat." What's more, the states that reject the "Duty to Retreat" are geographically and politically diverse. Not only do Southern states reject the "Duty to Retreat," but traditionally liberal states like Oregon, Illinois, and Connecticut also reject it. This makes decisions to "boycott Florida," as well as suggestions that "Stand Your Ground" laws are born from the perverse injustice of Jim Crow, all the more absurd.

Ultimately, the issues surrounding the "Stand Your Ground" law are far more complex than the oversimplification of "black and white." It is an important issue, which requires considered, thoughtful reflection. Framing the issue in the context of race, in which it is argued that proponents of "Stand Your Ground" are supporting a racist law, will surely squelch any chance of considered, thoughtful debate.


July 17, 2013

Like millions of Americans across the country, Fabiola Santiago is angry that George Zimmerman was acquitted in the killing of Trayvon Martin. Like millions of Americans upset with the verdict, she shows not the slightest appreciation for the rule of law. She writes derisively that juror B-37 "had no trouble giving Mr. Zimmerman the benefit of the doubt from the start," apparently blissfully unaware that it was juror B-37's solemn and lawful duty to presume Mr. Zimmerman's innocence from the start. The judge instructed her to give Mr. Zimmerman the benefit of the doubt. It's the law.

Don't get me wrong, I certainly understand her frustration. As I've said before, Trayvon Martin was doing nothing more than walking home with Skittles and iced-tea, when George Zimmerman called the police. Trayvon Martin was doing nothing wrong when Mr. Zimmerman got out of his car.

If George Zimmerman stood accused of calling the police on an individual who was actually doing nothing wrong, he'd no doubt have been found guilty. That, however, was not what the government accused Mr. Zimmerman of doing. Unfortunately, like so many upset Americans, Ms. Santiago has apparently forgotten that in America, when the government accuses an individual of a crime, the individual is given the benefit of the doubt, as a matter of law. The accused is presumed innocent, unless and until the government can prove every element of the crime beyond and to the exclusion of every reasonable doubt. In a case where the Defendant raises the possibility of lawful self-defense, the State must also prove beyond a reasonable doubt that the accused did not act in lawful self-defense.

Thus, the question posed to juror B-37 wasn't whether Mr. Martin was doing something wrong at the time that Mr. Zimmerman got out of his car; the question posed was whether Mr. Zimmerman actually and reasonably feared for his life, or feared he was about to suffer great bodily harm, when he shot Mr. Martin. If the answer to that question is "yes he did," then Mr. Zimmerman is not guilty. If the answer to that question is "maybe he did," then Mr. Zimmerman is not guilty. To find Mr. Zimmerman guilty, juror B-37 would need to have no reasonable doubt at all that Mr. Zimmerman did not actually and reasonably fear for his life.

Let me put it another way: just because Trayvon Martin was doing nothing wrong when Mr. Zimmerman called the police, doesn't mean that Mr. Zimmerman was guilty of the crimes of murder or manslaughter. Put yet another way, the issue isn't what Trayvon Martin was doing when Mr. Zimmerman called the police; the issue is what was Trayvon Martin doing when Mr. Zimmerman pulled the trigger.

Perhaps Ms. Santiago didn't watch the trial. Perhaps she isn't aware that the jury learned that Mr. Zimmerman suffered a broken nose and bloody lacerations to the back of his head. Perhaps she isn't aware that a neighbor, Jon Good, who stood a few feet away from Mr. Zimmerman and Mr. Martin during the struggle, testified that Mr. Martin had Mr. Zimmerman pinned down, and was "ground and pounding" Mr. Zimmerman. Perhaps Ms. Santiago isn't aware that Mr. Good testified that it was his opinion, as an individual standing a few feet away from the beating, that Mr. Zimmerman was crying for help. Perhaps she isn't aware that the State provided no evidence at all about how the physical confrontation started.

Perhaps Ms. Santiago isn't aware that it was juror B-37's solemn, lawful duty to presume Mr. Zimmerman's innocence in the absence of compelling evidence to the contrary. If Ms. Santiago actually believes that the State presented compelling evidence of Mr. Zimmerman's guilt, then Ms. Santiago either didn't watch the trial, or she holds the government to an incredibly low burden.

Ms. Santiago suggests that Mr. Zimmerman could have shot Mr. Martin in the leg. Again, apparently Ms. Santiago is unaware that (1) the law doesn't require Mr. Zimmerman to use non-deadly force if he reasonably fears for his life, or fears imminent great bodily harm; (2) shooting Mr. Martin in the leg may have placed Mr. Zimmerman in increased danger; and (3) a bullet to the leg can still prove a lethal wound, particularly if the bullet cuts the femoral artery.

Thankfully for all individuals in the State of Florida, we are not held to the exacting standards of Ms. Santiago. Rather, we are held to the standards of the law. That is the standard that juror B-37 applied. That is why George Zimmerman, innocent or not, is not guilty under the law.


July 15, 2013

From the start, I have made no secret of my opinion of the George Zimmerman prosecution. When the State filed formal criminal charges against Mr. Zimmerman, I explained the legal strength of Mr. Zimmerman's case. I also described the probable cause affidavit, which alleged Second Degree Murder, as woefully inadequate. The affidavit was not only short on evidence, but it also omitted material facts, which suggested Mr. Zimmerman's immunity under the law. Finally, during the trial itself, I wrote: This prosecution is less about justice, finding the truth, and adherence to the rule of law, than it is about offering a sacrificial lamb at the table of political expediency.

Of course, it is undeniably true that the death of Trayvon Martin was a terrible tragedy. He was a young man in the prime of his youth, who was doing nothing wrong when George Zimmerman pulled over his car and called the police. Let me say forthrightly, that I believe that Mr. Zimmerman acted with profound irresponsibility on the night of the shooting. That said, the prosecution was well aware that it had neither the facts nor the law to prove Mr. Zimmerman's guilt.

As attorney Don West said, "the prosecution of George Zimmerman was disgraceful." It was, indeed. Let me explain why.

The stability of our society, as well as the protection of our individual liberty, depends upon the fair and even application of the rule of law. In our country, we do not prosecute individuals based upon emotion, or feelings of rage, or on assumptions; we prosecute individuals based upon evidence, in the form of testimony and exhibits. Our system is premised upon the realization that no human government can fulfill the promise of true, absolute justice (what some would call "divine justice"). Thus, what we strive for is what is in our power: the orderly, logical application of a system of law.

Foundational to our system of law is the recognition that all men and women are presumed innocent, unless and until they are proven guilty, beyond and to the exclusion of every reasonable doubt. As a starting premise, we recognize that all men and women deserve a fair trial, which requires that the government share with the Defense all of the relevant evidence before trial, particularly if the evidence is exculpatory. Lastly, we depend upon the government to faithfully and evenly apply the law to all individuals, even if the law favors the rights of the accused.

Under no circumstances can our society, or our individual liberties, survive in an environment where the government selectively applies these immutable principles of law. As Saint Thomas More says in the masterpiece, A Man For All Seasons, "This country is planted thick with laws, coast to coast; man's laws, not God's. And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."

To be sure, it is not always popular to provide the "Devil" benefit of the law. John Adams didn't ingratiate himself with the people of Boston when he defended the British soldiers accused of massacring a crowd of unarmed civilians in 1770. Nor did the character Atticus Finch, in Harper Lee's To Kill a Mockingbird, take a popular position when he defended Tom Robinson of raping a white woman in the segregated South. In both instances, however, these men--both fictional and nonfictional--not only defended their clients, but they also defended the rule of law from the angry emotions of the mob.

Regardless of whether anyone disagrees with the policy, the law in the State of Florida is clear and settled: the State may not prosecute anyone for Murder or Manslaughter (or any other violent offense), unless the State has probable cause to believe that the killing was not committed through the use of justifiable deadly force. That is the law; the application of which preserves our collective liberty.

The original investigators, as well as the State Attorneys Office of the 18th Judicial Circuit, knew this well when they initially investigated the case. They were aware that Mr. Zimmerman was invoking self-defense from the start, even before the arrival of police. They were aware of Mr. Zimmerman's injuries, which included an apparent broken nose, lacerations, abrasions, and bumps on his head. They were aware that an eyewitness had seen Trayvon Martin "beating up" George Zimmerman, "MMA style," "ground and pounding" Mr. Zimmerman's head. They were aware that the same eyewitness heard Mr. Zimmerman crying for help. They were aware that the muzzle of Mr. Zimmerman's gun had made contact with Mr. Martin's sweatshirt, but that it didn't make contact with Mr. Martin's body, which indicated that Mr. Martin was likely on-top of Mr. Zimmerman at the time of the shooting. They were aware that Mr. Martin's body manifested no bruising or cuts or abrasions that would indicate Mr. Zimmerman had struck Mr. Martin prior to the shooting.

In short, the original investigators were aware that they had significant and compelling evidence corroborating Mr. Zimmerman's statements.

In other words, not only was there not probable cause to disbelieve Mr. Zimmerman's version of events, but there was probable cause to believe that Mr. Zimmerman's actions complied with Florida Statute.

Indeed, under Florida law, even the individual provoking the fight is immune from prosecution, if, at the time the provocateur acted in self-defense, the provocateur had exhausted all means of escape. As we know, an eyewitness saw Mr. Martin pinning Mr. Zimmerman down "MMA style," shortly before the shooting. What's more, in corroboration of Mr. Zimmerman's statement, law enforcement observed that Mr. Zimmerman's back was soaking wet and covered in grass. The gunshot itself was close-range, and, as already stated, was consistent with Mr. Martin having been on top of Mr. Zimmerman. In such a position, there simply was no avenue of escape.

That said, there was no evidence Mr. Zimmerman had provoked the fight in the first place, either as a matter of law or as a matter of fact. It is a logical fallacy to presume that because Mr. Zimmerman got out of his car, he necessarily accosted Mr. Martin. Applying the foundational legal premise that all men and women are presumed innocent, the original investigators were not willing to presume Mr. Zimmerman's guilt in the absence of evidence.

Unfortunately, the organized political pressure of special interest groups prevailed. State Attorney Angela Corey, as well as her assistants Bernie de la Rionda, John Guy, and Richard Mantei, willingly "cut a great road through the law, to get at the Devil." In their probable cause affidavit, they omitted any reference to Mr. Zimmerman's injuries, or to eyewitness statements that Mr. Martin was "ground and pounding" Mr. Zimmerman. Essentially, they ignored Mr. Zimmerman's constitutional right to a presumption of innocence, and instead chose to prosecute Mr. Zimmerman on "what-if's" and speculative hypotheticals.

They accused Mr. Zimmerman of Second Degree Murder, alleging that he acted with "ill will, hatred, spite, or an evil intent," based entirely upon Mr. Zimmerman's statements: "these assholes always get away" and "fucking punks." However, as the prosecution was well aware, these facts fell far short of Second Degree Murder under Florida law. As the 4th DCA recently stated:

"Florida courts have held that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. 'Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim.' Moreover, 'hatred, spite, evil intent, or ill will usually require more than an instant to develop.' While the jury may reasonably reject the theory of self-defense in a case involving a defendant's impulsive overreaction to a victim's attack, such a case warrants a conviction for manslaughter, not second-degree murder."

Logically, if saying the words "these assholes" and "fucking punks" converts a Manslaughter into Second Degree Murder, then there is no meaningful distinction between the two crimes. One would rightfully imagine that most manslaughters, at least those that occur in the context of physical confrontations, involve the use of colorful language. For the prosecution, however, neither the law nor logic was ever much of an impediment.

Having suspended the presumption of innocence, and having disregarded controlling authority on the requirements for Second Degree Murder, the prosecution proceeded to depart from standard investigative procedures. Desperate for a witness who could provide testimony that George Zimmerman provoked Trayvon Martin, the State accepted the assistance of the Martin family legal team, who delivered Rachel Jeantel. Outrageously, the prosecution interviewed Ms. Jeantel in the presence of Mr. Martin's mother. It is only natural to assume that the State took this unethical and bizarre approach to ensure that Ms. Jeantel stuck to the party line. Nevertheless, she lied under oath. Of course, that was not a worry for the State. Far from establishing the State's desired narrative, she testified at trial that Mr. Martin called Mr. Zimmerman a "crazy ass cracker" and used the "N-word" to describe Mr. Zimmerman. Still, not a worry for the State. Happy that she had finally added a new twist to her story, in which she now claimed--for the first time--that Mr. Martin said the words "get off, get off," the prosecution called her to the stand.

In addition to ignoring the presumption of innocence, disregarding controlling legal authority, and departing from standard investigative procedures, the State also abandoned its lawful discovery obligations. The Defense didn't learn about a series of photographs discovered on Mr. Martin's phone, which included images of a handgun, marijuana plants, and Mr. Martin bowing smoke, until a whistleblower stepped forward (who, surprise-surprise, has since been fired). What's more, the State significantly and unjustifiably delayed in disclosing to the Defense information pertaining to text-messages and videos, which included references and images of Trayvon Martin participating in organized street fights. In one of the videos, two of Mr. Martin's friends beat up a homeless man, with the implication that Mr. Martin videoed the assault. Regardless of their admissibility, these text messages, videos, and images were clearly discoverable. The Defense has filed a Motion for Sanctions, which the Court has yet to rule on.

During trial, the State all but admitted it had no case against Mr. Zimmerman. John Guy repeatedly asked the jury to "use their heart" and convict Mr. Zimmerman; presumably because if they "used their heads," they'd have no choice but to acquit. Something is wrong with the system when a prosecutor doesn't appeal to the evidence, but rather appeals to feelings and emotion.

For all of these reasons, the prosecution of George Zimmerman was disgraceful.

To be sure, the context of this case illustrates part of the ongoing struggle of being black in America. Trayvon Martin was doing nothing more than walking home with Skittles and iced-tea, when George Zimmerman called the police. No doubt, countless black parents have-- and will--counsel their children to be extra vigilant and cautious, for fear that their children will experience the indignity of unwarranted suspicion. That is an unfortunate, unjust reality in today's society, despite our substantial progress toward racial equality.

However, no one should forget the undeniable fact that George Zimmerman was living in a mixed race community, plagued by crime. From the testimony at trial, it appears that George Zimmerman was a concerned neighbor, who was on the lookout for anyone--anyone--who appeared out of place. And in a mixed race community, the color of Mr. Martin's skin surely would not have made him appear out of place, in and of itself. While people may reasonably speculate that Mr. Martin was unfairly racially profiled, that speculation remains just that: speculation. In this country, we are not supposed to convict people in a court of law based upon speculation alone. What's more, Mr. Zimmerman wasn't accused of racial profiling; he was accused of murder.

It is unfortunate that so many people misunderstand the core tenet of our criminal justice system: that all men and women are presumed innocent until the weight of the evidence removes any and all reasonable doubt. Is it possible that George Zimmerman attacked Trayvon Martin? Sure, it's possible. Is there any evidence of it? Very little, if at all. Not even Rachel Jeantel could testify to that. If there is no evidence, you must presume innocence. Anything less is a violation of the law.

On the other hand, there is evidence that Trayvon Martin attacked George Zimmerman. The sophomoric response from many supporters of the prosecution, is that Mr. Zimmerman deserved to be attacked. Apparently, in the minds of many people, it is perfectly acceptable for a person to physically attack a stranger that is following another person. But let's think that through. Does the law recognize a right to use force against another person, when the other person hasn't actually made physical contact or pulled a weapon? No, it does not. It certainly doesn't allow for someone in that scenario to break a person's nose and then "ground and pound" the person's head into the cement.

And let's flip the scenario. Imagine that instead of Trayvon Martin walking home, it was a young white man walking home. Imagine that a grown black man, acting as a neighborhood watchman, found the young white man suspicious, and called the police. Imagine that the young white man called the neighborhood watchman the "N-word," while speaking with his friend on the telephone. Imagine that the young white man, enraged that a black man was following him, attacked the black man. Imagine, moreover, that the young white man not only had a history of fighting, but that his friends solicited fighting lessons from him, presumably because he was so experienced at fighting.

Imagine that a nearby neighbor testified that the young white man was on top of the black man, "ground and pounding" the man's head and "beating him up." Imagine that after the shooting, the black man, bloodied and beaten, told the very first person to arrive on the scene: "He attacked me and I shot him. I was calling for help, but no one came. I've already called the police." Imagine, that when the police interviewed him, the black man said the words "thank God," when told that there was a video of the altercation.

Would anyone expect the case to be prosecuted under those circumstances? And if the case was prosecuted under those circumstances, would it not reek of racism? If a white person were to attack a black person, simply because the black person was following the white person, would there not be a suggestion that the white person acted out of an irrational, prejudiced fear? If we denied the black person the benefit of the law of self-defense, what would that say about our country?

What does it say about our country that so many people presume Mr. Zimmerman's guilt, despite the weight of the evidence to the contrary?

This was a tragic case, on so many levels. There were no winners. Mr. Zimmerman acted foolishly when he exited his car. Indeed, based upon his unsatisfying explanation as to why he found Mr. Martin suspicious, he acted foolishly when he called the police in the first place. However, it was profoundly irresponsible for the State of Florida to disregard its legal duties. The State chose to adopt a speculative, imaginary narrative, unsupported by the evidence, for the purpose of placating a political special interest. It should have been obvious to anyone watching the trial, that the evidence proved only one case: the case of self-defense.

The only redeeming quality of this trial, which seems to have unnecessarily ripped at the seems of racial animosity, is that the jury system worked. Six women, with no legal training, successfully listened to the evidence and applied the evidence to the law, as instructed by the judge. They didn't succumb to the government's tempting suggestion to "think with their hearts." Instead, in the great tradition of the American legal system, six jurors from the community used their heads and applied the law to the facts.

Now it's time to take account of what happened, and move forward with an eye toward preventing something like this from ever happening again. There are many difficult lessons to be learned for everyone: for the prosecutors and politicians; for George Zimmerman and his supporters, who are happy with the verdict; for those who are upset with the verdict; and for everyone in between.


July 3, 2013


The State really took a walk in the wilderness on Day 8 of the George Zimmerman trial, essentially wasting the entire morning with witnesses of questionable relevancy. The State chose to focus on George Zimmerman's application for a job as a police officer, as well as his coursework at Seminole State College. The State actually put a Virginia police officer on a plane and flew him down to Florida to testify that (1) George Zimmerman applied for a position with the Prince William County Police Department; but (2) his agency no longer had a record of George Zimmerman's application or the reason for his rejection. Seriously. That's all that he testified to. Airfare well spent State of Florida!

Sometimes, when a prosecutor can't prove the case he is prosecuting, he tries to prove a case that he isn't prosecuting. In other words, a prosecutor might try to divert the jury's attention from the core elements of the offense, and instead focus the jury on tangential issues. It is an attorney's job to object to this tactic, and for the judge to enforce the rules of evidence and prevent the prosecutor (or the defense) from diverting the case into collateral issues.

Unfortunately, the judge allowed the prosecution to take the jury into the fringe weeds of relevance, over the Defense's objection, allowing the State to call a series of witnesses to testify that George Zimmerman took a couple of courses at Seminole State College, which covered the subject of Florida's "Stand Your Ground" law. The only plausible relevance to this testimony is that it shows (1) that Mr. Zimmerman knew about the law, and thus could have crafted his narrative to comply with the law; and (2) it directly contradicts Mr. Zimmerman's statement to Sean Hannity.

As to the former point, that argument does not rationally apply to this case. This is not a situation where there was no evidence of a physical confrontation between Mr. Zimmerman and Mr. Martin, other than Mr. Zimmerman's word. No one disputes that Mr. Zimmerman and Mr. Martin were in a fight. Mr. Zimmerman has the injuries to prove he was in a fight. Jon Good testified that he saw the fight. Numerous witnesses testified that they heard the fight. There is simply no basis from which to argue that Mr. Zimmerman "faked it." After going through the traumatic experience of killing another human being, and after having his nose broken and his head struck, Mr. Zimmerman immediately claimed self-defense; he immediately told witnesses that he called out for help. To believe that Mr. Zimmerman instantly remembered coursework, from years prior, and crafted a story on the spot to fit into the framework of self-defense, is ludicrous. Absolutely ridiculous.

As to the latter point, the evidence that George Zimmerman took courses that covered the "Stand Your Ground" law does potentially contradict Mr. Zimmerman's statement to Sean Hannity. Thus, the relevance of the testimony was to establish that Mr. Zimmerman made a dishonest statement to Mr. Hannity. Arguably, this theory tests the bounds of relevance, as it comes dangerously close to impeaching Mr. Zimmerman on a collateral issue. What's more, the State couldn't establish that Zimmerman was actually present for the class discussions on the issue of "Stand Your Ground."

Nevertheless the State called Captain Alexis Carter to the stand. Captain Carter is a current Army J.A.G. officer and a former part time instructor at Seminole State College. Captain Carter taught a class in which he discussed the law of self-defense with students. The subject itself wasn't in the course materials, but Captain Carter did discuss it with the class.

The testimony took the turn for the surreal when, under cross examination, Captain Carter began to educate the jury on the law of self-defense. It is highly improper for a witness to comment on the law. Nevertheless, the Defense successfully "hijacked" Captain Carter's testimony, having Captain Carter explain to the jury that under Florida law, even someone "provoking" a fight can rely on self-defense. It was yet another instance in which the State's witness probably did more for the Defense than for the State.

Honestly, the entire morning was a waste of time. In the afternoon, however, the State picked up its game. They called to the stand two forensic witnesses to testify as to the operation of the gun that killed Mr. Martin, as well as to the analysis of DNA evidence collected from the scene. In other words, the State went back to the business of trying to prove Mr. Zimmerman's guilt.

Amy Siewert, an FDLE crime lab analyst, took the stand and testified as to the operation of Mr. Zimmerman's handgun. Perhaps the most important part of her testimony involved her examination of Trayvon Martin's sweatshirt and undershirt. Not only did her testimony allow the State an opportunity to show the jury Mr. Martin's bloody clothes, but Ms. Siewert also testified that the handgun made contact with Mr. Martin's clothes at the time of discharge.

While her testimony was relevant, it didn't do much to further the State's case or discredit Mr. Zimmerman's version of events. We already knew that Mr. Zimmerman killed Trayvon Martin with his gun. We already knew that the shooting occurred at point-blank range. If the State wants to discredit Mr. Zimmerman with forensic evidence, they need to establish that the trajectory of the gunshot wound was inconsistent with a scenario where Mr. Martin was on top of Mr. Zimmerman. Ms. Siewert couldn't provide the State that testimony.

Next, the State called Anthony Gorgone, a forensic biologist with FDLE, who analyzed the DNA evidence collected at the scene. The State scored some important points with Mr. Gorgone. He testified that Trayvon Martin's DNA was not found anywhere on Mr. Zimmerman's handgun or holster, nor was Mr. Zimmerman's blood found anywhere on Trayvon Martin's body or clothes. Unlike most of the rest of the State's evidence, this testimony didn't corroborate Mr. Zimmerman's version of events.

However, the value of Mr. Gorgone's testimony was still limited. Mr. Zimmerman didn't tell law enforcement that Mr. Martin touched the gun or the holster; he told law enforcement that his gun became exposed and Mr. Martin made a move toward the gun. Mark Osterman testified that the thought Mr. Zimmerman said that Mr. Martin grabbed the gun or the holster (or both), but Mr. Osterman's testimony simply reflects Mr. Osterman's recollection. What's more, just because Mr. Martin's DNA wasn't recovered from the gun or the holster doesn't mean that Mr. Martin didn't touch the gun or the holster. It just means that his DNA wasn't recovered from those items.

Nevertheless, neither Mr. Gorgone's nor Ms. Siewert's testimony backfired on the prosecution, and they each laid some groundwork for the prosecution's closing argument. It wasn't a horrible day for the prosecution, particularly considering that they introduced the bloody clothes to the jury; but the State still has not come close to disproving Mr. Zimmerman's version of events.

With the State arriving at the end of their case, I'm not sure Mr. Zimmerman needs to call any witnesses at all. The State is simply not meeting its burden.


July 2, 2013

Today's action began with a continuation of the cross examination of Detective Serino, who took the stand yesterday. As already discussed, Detective Serino's testimony has greatly contributed to the Defense's case. The State, in a puzzling strategic ploy, decided to enter all of George Zimmerman's recorded statements into evidence. In so doing, the State allowed Mr. Zimmerman to communicate his version of events to the jury, without subjecting Mr. Zimmerman to cross examination. Essentially, the State has provided the jury with all of the evidence necessary for Mr. Zimmerman to assert self-defense, without Mr. Zimmerman having called a single witness to the stand, including himself.

However, things did pick up for the State. The State called to the stand Dr. Valerie Rao, a Medical Examiner who reviewed Trayvon Martin's autopsy report, as well as pictures, video, and medical records of George Zimmerman. Dr. Rao testified that in her expert opinion, Mr. Zimmerman did not suffer any significant injuries. She constantly referred to his injuries as "very insignificant" and "very small." Based upon her viewing of videos of Mr. Zimmerman at the police department, Dr. Rao testified that Mr. Zimmerman was "not impaired in any way." She also testified that, in her opinion, all of Mr. Zimmerman's injuries could have been caused by as little as three blows to Mr. Zimmerman's head.

Strangely, however, the State did not ask Dr. Rao to testify as to any of the injuries suffered by Trayvon Martin. They called her simply to testify that George Zimmerman's injuries were "very insignificant."

While Dr. Rao did score some points for the prosecution, there were also some problems with her testimony. First, the State is essentially asking the jury: "Who are you going to trust: my expert witness, or your lying eyes?" The fact is, the jury has already viewed photographs of bloody injuries; the jury has already heard evidence of a broken nose; the jury has already seen a video of Mr. Zimmerman with blackened "raccoon eyes" the day after the incident. Now, the State's Medical Examiner, who didn't observe Mr. Zimmerman's injuries first hand, is testifying that the injuries were "very insignificant." That doesn't really compute. Sure, I understand that the injuries weren't life threatening, but "very insignificant?" If cuts to the back of the head and a broken nose are "very insignificant," how would she describe a scrape? Super "very insignificant?" Her opinion seemed a little hyperbolic.

Second, as a matter of law, Mr. Zimmerman doesn't need to show that he suffered any injury at all. As the jury instructions state, "The danger facing the defendant need not have been actual...Based upon appearances, the defendant must have actually believed that the danger was real." Thus, regardless of whether Dr. Rao believes that bloody cuts and a broken nose are "very insignificant" and "very small" injuries, what matters from a legal standpoint is whether Mr. Zimmerman actually believed he was about to suffer great bodily harm.

Third, Dr. Rao's diagnosis was based entirely upon viewing two dimension photographs of Mr. Zimmerman's injuries. She never treated Mr. Zimmerman personally, nor did she have an opportunity to analyze the severity of the bumps and welts on Mr. Zimmerman's head.

Fourth, Dr. Rao came off very combative. She was not straightforward in answering Mr. O'Mara's questions. She was abrasive. It is really not normal for a Medical Examiner to appear so partisan in her testimony. If Dr. Rao had testified just a little more level-headed, her testimony would have played much better. However, claiming that bloody cuts and a broken nose are "very insignificant" defies common sense. She objected to the photographs Mr. O'Mara was using on cross examination, but then admitted that Mr. O'Mara's photographs were the same as her photographs. She seemed less interested in a straightforward analysis, and more interested in fighting with the defense attorney. From a prosecutor's perspective, it is immensely important that the Medical Examiner appear professional, level-headed, and non-biased. Dr. Rao failed in that regard. She seemed more like a paid consultant.

That said, the prosecution definitely scored points with Dr. Rao. She ratified (so to speak) the earlier testimony of Stacey Livingston and Lindzee Folgate, both of whom treated Mr. Zimmerman, and both of whom downplayed the severity of Mr. Zimmerman's injuries. And while the law doesn't require Mr. Zimmerman to have suffered any injury, in order to successfully argue that he used justifiable deadly force, Mr. Zimmerman must show that he "reasonably believed that such force was necessary to prevent great bodily harm to himself." The State will argue that Mr. Zimmerman was not reasonable in fearing "great bodily harm," because the force employed by Trayvon Martin only resulted in "very insignificant" injuries.

Ultimately, I don't think that argument will prevail. Jon Good has already testified that Trayvon Martin was on top of Mr. Zimmerman, "ground and pounding" Mr. Zimmerman, "raining blows down" on Mr. Zimmerman. Mr. Good also testified that in his opinion, Mr. Zimmerman was crying for help. Officer Smith has testified that upon speaking with Mr. Zimmerman at the scene of the shooting, Mr. Zimmerman immediately claimed to have yelled out for help. We've heard the 911 calls, in which the sound of screaming is noticeable in the background. Jenna Lauer testified that the screaming sounded like it was coming from someone who was "desperate." Considering all of that testimony, it seems reasonable that Mr. Zimmerman was actually and reasonably in fear of suffering great bodily harm.

In addition to Dr. Rao's testimony, the State also played an interview that Mr. Zimmerman gave to Fox News' Sean Hannity. I can't emphasize enough what a bad decision it was for Mr. Zimmerman to give that interview. It served no beneficial purpose for Mr. Zimmerman (although, perhaps, the interview helped raise funds for Mr. Zimmerman's defense). While nothing that Mr. Zimmerman said to Mr. Hannity was materially inconsistent with his statements to law enforcement (there were, arguably, some minor inconsistencies), he did answer some of Mr. Hannity's questions in a strange way. For instance, Mr. Hannity asked Mr. Zimmerman whether Mr. Zimmerman regretted getting out of the car that night. Mr. Zimmerman said "no." Mr. Zimmerman then explained that what happened was part of "God's plan," and he didn't think it was right to question "God's plan."

I suppose people can interpret that statement differently, but I'd venture to guess that many people find that statement cold hearted and weird.

The State also called Mark Osterman to the stand. Mr. Osterman is Mr. Zimmerman's "best friend," who wrote a book chronicling Mr. Zimmerman's version of events. Presumably, the State believes that there are discrepancies between the version of events Mr. Zimmerman gave to law enforcement and the version Mr. Zimmerman gave to Mr. Osterman. However, whatever those discrepancies may be, they certainly are not material. In fact, in every material way, the version given to Mr. Osterman was the same as the version given to Detective Serino. In both versions, Mr. Zimmerman claims that he was (1) walking back to his car; (2) Trayvon yelled out: "You got a problem, motherfucker?"; (3) Trayvon sucker punched Mr. Zimmerman as Mr. Zimmerman was reaching for his phone; (4) Trayvon grabbed Mr. Zimmerman's nose and mouth; (5) Trayvon straddled Mr. Zimmerman; (6) Trayvon grabbed at--or moved his hand in the direction toward--Mr. Zimmerman's handgun; (7) Mr. Zimmerman shot Mr. Martin in the chest; and (8) Mr. Zimmerman, after shooting Mr. Martin, got on top of Mr. Martin and spread Mr. Martin's arms out to the side.

As to this last point, perhaps the State will focus on Mr. Zimmerman's claim that he allegedly spread Mr. Martin's arms out to the side after the shooting. The photographs of Mr. Martin's body at the scene establish that Mr. Martin's arms were tucked under Mr. Martin's body, which seems inconsistent with Mr. Zimmerman's claims to have spread out Mr. Martin's arms. However, in the final analysis, the jury has to ask itself: so what? What does it matter whether Mr. Zimmerman spread out his arms or didn't spread out his arms? Where does that alleged discrepancy get the State, when the lead investigator has already testified that Mr. Zimmerman's version was consistent with all of the available eyewitness statements? If Mr. Zimmerman was wrong about stretching out Mr. Martin's arms, does that mean that Mr. Zimmerman was wrong about everything else too? Of course not.

Also, Mr. Osterman testified that he understood Mr. Zimmerman to say that Trayvon Martin actually grabbed his gun, as opposed to simply reaching for it. While television pundits have tried to make a lot out of this apparent discrepancy, I think they're over playing it. Mr. Osterman understood Mr. Zimmerman to say that Trayvon grabbed the gun, but he can't say with certainty that that's what Mr. Zimmerman said. It's like playing a game of telephone. Whether Mr. Zimmerman actually told his friend Trayvon Martin grabbed the gun, or whether the friend misinterpreted Mr. Zimmerman, it's a relatively minor discrepancy. What's more, if the discrepancy was made in bad faith, you'd expect that Mr. Zimmerman would have embellished to the police; not to his friend.

Lastly, the State called Kristen Benson to the stand. A latent fingerprint examiner, she testified that a single latent fingerprint was lifted from Mr. Zimmerman's handgun, but that the print was of no value and couldn't be analyzed.

All things considered, today was a good day for the State. Which, is another way of saying that today, the State didn't royally screw the pooch, as they have done for the past week. They presented evidence of minor discrepancies between Mr. Zimmerman's recorded statements, and they presented an expert witness who combatively asserted that Mr. Zimmerman's injuries were "very insignificant." I think it was the prosecution's best day so far.


July 1, 2013

The bizarre trial against George Zimmerman continued into its second week today. As we discussed earlier, after calling 22 witnesses in the first week, the State presented a substantial amount of evidence corroborating George Zimmerman's version of events. Today, the State doubled-down. Today, it was as though the State was trying to prove Mr. Zimmerman's innocence.

First, the State called Dr. Hirotaka Nakasone to the stand. Dr. Nakasone is an expert in the field of voice recognition, who works for the Operational Technology Division of the FBI. Finally! The State pulled out the big guns! Surely, Dr. Nakasone would testify that in the recorded telephone calls, the voice screaming for help was that of Trayvon Martin! This case is going to break right open!

When asked if he could determine the identify of the individual calling for help, Dr. Nakasone testified: "I decided it was not possible to determine."

Wait...what? The FBI expert, who conducted a voice identification analysis of the screaming voice recorded in multiple 911 calls, can't identify the screaming voice?! I'm shocked...SHOCKED.

It turns out, you can't identify a screaming voice sample with any degree of scientific certainty. Okay, fair enough. But surely, the State will have Dr. Nakasone testify that the voice came from a teenager, and not a grown adult...right?


"Guessing age is a little complicated," Dr. Nakasone testified. He couldn't provide an opinion as to the age of the individual screaming.

Okay, well, maybe someone familiar with a speaker's voice--say, like a mother or a father, who are familiar with their son's voice--could identify screams from 911 call? Yes, Dr. Nakasone testified, that is possible! Yay for the State! The State's expert witness testified that in his expert opinion, he could not determine the identity of the speaker; but, he acknowledged that maybe, possibly Trayvon Martin's family members, or George Zimmerman's family members, could. Brilliant! And let me guess: Trayvon's parents think its Trayvon; Zimmerman's family think its Zimmerman. In the world of criminal litigation, we call that: REASONABLE DOUBT.

Of course, Dr. Nakasone also testified that if someone were asked to identify a known voice sample, it is important not to introduce any bias into the analysis. For instance, it wouldn't be appropriate to have two parents analyze the voice sample together, because one parent could influence the other parent's analysis.

Considering that the State has conducted an outrageous investigation, in which prosecutors have violated core principles of sound investigative procedure (you know, like having Trayvon Martin's mother sit next to Rachel Jeantel for Ms. Jeantel's on-the-record, under oath interview), it wouldn't surprise me in the least to learn that Trayvon Martin's parents listened to the 911 calls together, and were asked to give their opinions together. Just a hunch.

The State also called Officer Singleton to the stand. Officer Singleton took a recorded interview of George Zimmerman on the night of the shooting, which the prosecution played in its entirety.

The playing of Mr. Zimmerman's statement was a huge coup for the Defense. As any criminal litigator with experience knows, the prosecution should avoid--if at all possible--from playing a Defendant's recorded statement, unless the statement is a confession. Why? Because if the prosecution plays the Defendant's recorded statement, in which the Defendant lays out his version of events, the Defendant no longer has an incentive to testify. Typically, the prosecution would salivate at the idea of cross examining the Defendant.

So, why did the State do it? The answer is obvious: the State's case is garbage, and they're reaching. Thus far, the overwhelming import of witness testimony has corroborated Mr. Zimmerman's version of events. Now that we've heard Mr. Zimmerman's recorded statement, we know that according to Mr. Zimmerman, he (1) got out of the car because he was trying to answer the police dispatcher's questions; (2) he was returning to his car when Trayvon Martin sucker punched him; and (3) after shooting Trayvon Martin, he got on top of Mr. Martin. This third point is essential, because a couple of witnesses have testified to seeing Mr. Zimmerman on top of Mr. Martin, after the shooting.

So, again, what's the point of playing Mr. Zimmerman's recorded statements? The State's hope is that the jury will find any inconsistencies between the statements as indicative that Mr. Zimmerman answered questions dishonestly. The Defense will argue that any inconsistencies were minor, and that it is entirely natural for an individual to tell the same story with mild inconsistencies. It's human nature.

Interestingly, Officer Singleton testified that Mr. Zimmerman asked Officer Singleton if Officer Singleton was Catholic. When Officer Singleton said, "No, I'm Christian; but why does that matter," Mr. Zimmerman responded: "Because in the Catholic faith, killing is always wrong."

First, as a matter of digression, let me disabuse everyone of the notion that the Catholic Church doesn't recognize the legitimacy of self-defense. Mr. Zimmerman was 100% wrong. From the Catechism of the Catholic Church, via the Vatican's website: "Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow...Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one's own life than of another's."

So, now that we are all on-board with the Catholic Church's position on self-defense, let's analyze Mr. Zimmerman's statement. The State will argue that Mr. Zimmerman's statement is indicative of a guilty conscious. He knew what he did was wrong. On the other hand, the State has presented some evidence tending to show that Mr. Zimmerman was overly calm and matter-of-fact, as though he didn't care. Clearly, at a minimum, Mr. Zimmerman evinced some emotion.

Personally, I think it is rather natural for a person who has killed in self-defense to question the morality of taking another's life, regardless of the justification. I don't think the statement is going to do much for the State. What's more, Officer Singleton denied that Mr. Zimmerman showed any emotions evincing "ill will, hatred, spite, or an evil intent."

Next, the State called the lead investigator to the stand, Detective Serino. Through Detective Serino, the State introduced numerous recorded statements of Mr. Zimmerman. During some of these recorded interviews, Serino pointedly challenged Mr. Zimmerman's account of what happened the night of the shooting. While Mr. Zimmerman mostly held his ground on key points, he clearly seemed uncomfortable. At some points, he simply claimed not to remember or recollect what happened.

These recorded statements probably scored some points for the prosecution. The challenging questions of Mr. Zimmerman undoubtedly had the jury thinking critically of Mr. Zimmerman's version of events.

However, the biggest takeaways from Detective Serino's testimony struck strong blows against the prosecution. Detective Serino testified that he didn't think he had enough evidence to arrest Mr. Zimmerman, but that he went forward because of political pressure. The damning import of that testimony cannot be understated. It doesn't just play to a key element of the Defense's narrative; it confirms it. This prosecution is less about justice, finding the truth, and adherence to the rule of law, than it is about offering a sacrificial lamb at the table of political expediency.

In a terrific cross examination, Mark O'Mara detailed with Detective Serino how Mr. Zimmerman's statements were consistent with all of the other eyewitness testimony gathered in the investigation. In fact, Detective Serino testified to the jury: "Yes [I think Mr. Zimmerman was telling the truth]."

Honestly, I cannot recall a trial in which the Defense has so consistently scored more points with prosecution witnesses than the prosecution itself. Then again, I've never seen a prosecution brought with such bad faith.


June 30, 2013

Week 1 of what is arguably the most important criminal case in generations, is in the history books. Let's break down the action.


To say the least, the opening statements were bizarre. As we have discussed here in the past, opening statements are of immense importance, particularly for the defense. The opening statement is the first opportunity for an attorney to frame the facts and the issues for the jury. As the saying goes, you never get a second chance to make a good first impression.

Zimmerman's defense attorney, Don West, thought the best way to make a good first impression was to tell the worst knock-knock joke in the history of bad knock-knock jokes. I couldn't help but think that Mr. West was trying to out-do the stuttering defense attorney in the movie My Cousin Vinny. It's as though he was trying to give the worst opening statement in the history of the world.

Now, I think it goes without saying that even if the joke was really funny and clever and intelligent, it is nevertheless inappropriate to begin defending a murder case with a joke; let alone, a knock-knock joke. Let alone, an unfunny knock-knock joke. Let alone, an unfunny knock-knock joke that pokes fun at the members of the jury. It was so bad, Alan Dershowitz suggested that Mr. Zimmerman ask for a mistrial, arguing that the stupidity of the joke prejudiced the jury to such an extent, that Mr. Zimmerman could not receive a fair trial going forward.

However, after bombing (or should I say, self-immolating) before the jury, Mr. West did eventually get around to providing the jury with a framework with which to view the evidence. Unfortunately, Mr. West laid out the entirety of the Defense case, which may have been overkill. When making an opening statement, an attorney never wants to overcomplicate the matter. An attorney wants to provide a narrative and a theme within which the jury may view the evidence. It's an opportunity to provide a persuasive context. However, if an attorney lays out the entire theory of the case, the attorney risks confusing and losing the interest of the jury. Let's not forget, the jury hasn't actually seen or heard any evidence. Opening statements should be easy to follow and should establish a universally recognizable theme.

The prosecutor, John Guy, didn't exactly give the best opening statement either, although his presentation was miles better than Don West's. Mr. Guy did a fantastic job laying out a framework for the jury. What's more, he hit the right tone. However, Mr. Guy could not escape the fact that the State's evidence is, at it's best, horribly insufficient to sustain a verdict of guilty. He was forced to acknowledge that (1) no State witness saw the entire confrontation between George Zimmerman and Trayvon Martin; (2) that the State could only provide the jury with "slices" of what actually happened; and (3) that Trayvon Martin was on top of George Zimmerman during the fight. I would expect to hear that from the defense; not the prosecution. Mr. Guy might as well have said: "We don't have enough evidence to prove this case beyond a reasonable doubt, but in the end, we hope you think he's guilty...in your gut."

All in all, thanks to Mr. West's horrific knock-knock joke, the opening statements went better for the prosecution than the defense, even though the prosecution essentially admitted the weakness of its case.


The State's line-up of witnesses has been somewhat puzzling. They've taken a fairly chronological approach, which, although logical, doesn't make for a compelling or persuasive presentation. The result has been a slow start to the trial. What's more, most of the State's witnesses have either: (1) not provided much evidence that is necessary to establish the key elements of the criminal charge; or (2) have helped the Defense as much as the State; or (3) have helped the Defense more than the State.

The first witness was Chad Joseph, Trayvon Martin's friend. While he provided important context to the jury, introducing Mr. Martin as a typical high-schooler who liked video games, he didn't provide any evidence that established any of the material elements of the offense. I think it would have been better to call Mr. Joseph to the stand toward the end of the State's case-in-chief, to provide some emotional impact, and to remind the jury of Mr. Martin's youthful disposition. The testimony of waiting in vain for Mr. Martin to return home, not knowing that he'd been shot dead on the way back from the Seven Eleven, would have proven more powerful toward the end of the State's case.

The State's second witness was Andrew Gaugh, the Seven Eleven attendant who sold Trayvon Martin the famous can of Iced Tea and the bag of Skittles. Mr. Gaugh did little more than authenticate surveillance video of Mr. Martin at the Seven Eleven, which was recorded about forty-plus minutes before the shooting. He also testified that he didn't find Mr. Martin "suspicious."

All things considered, the testimony from these two witnesses didn't do much to push the ball forward for the State.


The State's third witness was Sean Noffke, the police dispatcher who spoke with George Zimmerman before the shooting. Mr. Noffke was an important witness, because it was through his testimony that the State admitted into evidence the recorded telephone call that Mr. Zimmerman made to the police on the night of the incident.

The phone call itself is of immense importance to the prosecution, because in the recorded call, Mr. Zimmerman says the words: "these assholes always get away." He might also have said the words: "fucking punks," although those words are not perfectly clear in the call. It is certainly a plausible interpretation to believe Mr. Zimmerman said the words: "fucking punks."

Unfortunately for the State, this is probably the only credible evidence that it can rely upon when making the argument that George Zimmerman killed Trayvon Martin with "ill will, hatred, spite, or an evil intent." The overwhelming weight of the evidence is that the shooting occurred in the course of a physical altercation between Mr. Zimmerman and Mr. Martin. This context, by itself, doesn't readily lend itself to a charge of Second Degree Murder (it could, however, lend itself to a Manslaughter charge). However, the State is alleging something more: that Mr. Zimmerman provoked and sought out the fight with Trayvon Martin, with a "depraved mind and without regard for human life." It is the State's hope that the jury will believe that Mr. Zimmerman acted with "ill will, hatred, spite, or an evil intent," because Mr. Zimmerman, prior to shooting Trayvon Martin, said the words: "these assholes always get away," "fucking punks."

Beyond those statements, all of the other evidence simply suggests that George Zimmerman followed Trayvon Martin with the intent of leading the police to Mr. Martin's location. There is very little (if any) credible evidence that Mr. Zimmerman initiated a physical confrontation with Mr. Martin. In fact, the phrase "these assholes always get away" and "fucking punks" doesn't necessarily indicate that Mr. Zimmerman acted with "ill will or hatred," or that he initiated physical contact. At most, it presents an arguable inference that (1) Zimmerman was frustrated and angry; (2) Zimmerman wanted to make sure that Trayvon Martin didn't get away; and thus (3) maybe Zimmerman was willing to do whatever it took to make sure that Mr. Martin didn't get away.

In light of the State's burden to prove each and every element beyond and to the exclusion of every reasonable doubt, it should go without saying that to sustain a conviction for Second Degree Murder, the State will have to do better than just a "maybe."

Interestingly, Mr. Noffke's testimony laid to rest the State's allegation that George Zimmerman disregarded an "instruction" not to follow Trayvon Martin. Mr. Noffke acknowledged that he did not "instruct" Mr. Zimmerman not to follow Trayvon Martin, because, as a police dispatcher, he was specifically trained not to provide such an instruction.

Ultimately, this witness served a purpose for both the State and the Defense. For the State, the witness authenticated the recorded telephone call, which included the colorful language that arguably indicates that Zimmerman acted with "ill will, hatred, spite, or an evil intent." On the other hand, the witness acknowledged that he did not order Mr. Zimmerman to not follow Trayvon Martin. In fact, he admitted that he asked Mr. Zimmerman questions about Mr. Martin's whereabouts, which might have reasonably led Mr. Zimmerman to follow Mr. Martin. In the end, Mr. Noffke's testimony was a wash.


The State called Ramona Rumph in order to admit a series of non-emergency telephone calls made by Mr. Zimmerman in the months prior to the shooting. The State intends to use these phone calls to provide context to Mr. Zimmerman's state of mind on the night of the shooting. It is the State's contention that after making a series of fruitless phone calls to police, Mr. Zimmerman was frustrated and desperate that another "suspicious" individual not escape.

Clearly, the Defense didn't want these calls in evidence. However, at most, the State is asking the jury to draw a negative inference from what are otherwise benign non-emergency telephone calls to police, which arguably are consistent with Mr. Zimmerman's role as a member of the neighborhood watch. While it's possible that maybe these phone calls indicate a growing frustration on the part of Mr. Zimmerman, they certainly don't prove, beyond and to the exclusion of every reasonable doubt, that Mr. Zimmerman acted with the requisite criminal intent.

Nevertheless, the phone calls do further the State's portrayal of Mr. Zimmerman as an overzealous neighborhood watchman.


Furthering their narrative that Mr. Zimmerman was an overzealous neighborhood watchman, the State called to the stand Wendy Dorival, the former neighborhood watch coordinator with the Sanford Police Department. Ms. Dorival testified that members of the neighborhood watch were instructed not to follow or attempt to confront suspicious individuals, but were instead cautioned to only call the police. The State will rely on this testimony to argue that Mr. Zimmerman broke from typical protocol when he got out of his car and followed Mr. Martin, indicating that Mr. Zimmerman acted with an "ill will" when he shot Mr. Martin (or, in the alternative, that he acted with "culpable negligence").

However, the Defense scored important points with Ms. Dorival. Ms. Dorival testified that Mr. Zimmerman was "professional" and dedicated to his volunteer position as a neighborhood watchman. She said it was apparent that Mr. Zimmerman wanted to help make the community a better place, particularly because the community had suffered a series of burglaries. Most importantly, she described Mr. Zimmerman as "meek."

All things considered, this witness was probably a wash.


The State called Donald O'Brien to hammer home the narrative that Mr. Zimmerman acted inappropriately. Mr. O'Brien was the president of the HOA, and testified that he attended a neighborhood watch meeting, in which participants were instructed not to engage suspicious individuals. Essentially, his testimony was duplicative of Ms. Dorival's testimony.


Finally, with the testimony of Officer Raimondo, the State presented evidence from a witness who could provide some testimony about what occurred at the scene of the alleged crime. Officer Raimondo didn't witness any portion of the altercation or the shooting, but he was the officer who attempted to provide life-saving aid to Trayvon Martin at the scene. His testimony was compelling and powerful.

For purposes of making a persuasive presentation, the State should not have waited until its seventh witness to provide this testimony. In a murder case, it is important that the State constantly remind the jury why the jury is seated in the first place: the defendant killed a human being. The State should confront the jury with pictures of the deceased victim immediately, to hammer home the seriousness of the case and the humanity of the victim. Nothing is so jarring than seeing pictures of a lifeless victim, still dressed in his clothes and in his shoes, lying peacefully in the wake of a violent confrontation.

What's more, Officer Raimondo testified as to how he tried to save the life of Mr. Martin. This provided the State with a golden opportunity to juxtapose the actions of Mr. Zimmerman with the actions of law enforcement. From the State's perspective, Mr. Zimmerman was a vigilante, unprofessionally and recklessly taking matters into his own hands; not only with "culpable negligence," but also with an "ill will" and "evil intent." Unlike Mr. Zimmerman, real members of law enforcement tried desperately to save Mr. Martin's life.

Ultimately, the State scored important emotional points with this witness. It was the first witness in the State's case that not only didn't backfire in any meaningful way, but who also moved the ball forward for the State. The admission of the death photos were jarring. For this reason, Officer Raimondo should have been the State's first witness.

From here on out, the State's case proceeds to nose-dive.


The State had to call Diana Smith, because she processed the crime scene. It was through Ms. Smith that the State admitted much of the physical evidence recovered at the crime scene, including the gun and the shell casing. However, Ms. Smith's testimony was far more important for the Defense, because she took pictures of Mr. Zimmerman that showed that Mr. Zimmerman suffered substantial injuries to his face and head, corroborating the Defense's theory of the case.

Again, the State had no option but to call Ms. Smith. Considering that it was inevitable that she would aid in the Defense's case, it was a smart move to bury her testimony in the middle of the third day of the trial. However, the fact that she testified immediately following Officer Raimondo illustrates the State's error in scheduling its witnesses.
Officer Raimondo scored important emotional points with the jury. While Ms. Smith also scored some emotional points by displaying Mr. Zimmerman's handgun, she also introduced the jury to bloody pictures of Mr. Zimmerman, which undoubtedly diluted the emotional impact of Officer Raimondo's testimony.

Certainly, Mr. West could have done a more persuasive job on cross examination, painstakingly drawing out the various individual cuts, abrasions, bruises, and swelling that Ms. Smith observed on Mr. Zimmerman's head and face. Nevertheless, the point was made: although the State claims that Mr. Zimmerman attacked Mr. Martin, the crime scene technician observed no injuries on Mr. Martin's body, other than the fatal gunshot wound. Mr. Zimmerman, however, who is claiming that he only fired his gun in self-defense after being viciously attacked, suffered numerous bloody injuries, including a broken nose, cuts to the back of his head, and multiple welts.

Without a doubt, through Ms. Smith's testimony, the Defense delivered its first major blow to the State's case.


I cannot imagine why the State chose to call Ms. Bahadoor as its first "eyewitness." It simply makes no sense, as a matter of chronology or logic, to have called her first. She essentially saw nothing in the darkness, other than flailing arms. She heard sounds coming from people outside, followed by a gunshot. She also testified that she heard movement that sounded as though individuals were moving from left to right. She could not provide any detail indicating who started the confrontation, or what specifically was happening during the confrontation.

The Defense tore Ms. Bahadoor apart. Despite claims that she didn't change her testimony, Mark O'Mara established that during numerous prior statements, Ms. Bahadoor had never once said she heard sounds moving from left to right. Instead of simply admitting this, Ms. Bahadoor evaded. It seriously damaged her credibility.

What's worse, Ms. Bahadoor denied bias, despite "liking" the Facebook page "Justice for Trayvon." Worse still, she "liked" a petition calling for the arrest and prosecution of George Zimmerman. Mark O'Mara did a wonderful job establishing that Ms. Bahadoor was not only motivated by bias, but that she allowed that bias to affect her testimony.

For a witness who, at best, couldn't provide the State with any meaningful insight into the nature of the physical confrontation between Mr. Zimmerman and Mr. Martin, it is a mystery as to why the State would call her first. What's worse, the Defense portrayed the State's first eyewitness as a biased sympathizer of the Martin family. Fairly or not, that impression will likely color the testimony of future State witnesses, because it corroborates part of the Defense's theory and theme of the case.

Ms. Bahadoor was an unforced error.


While Ms. Manalo's testimony played better than Ms. Bahadoor's, she also couldn't provide the State with details sufficient to contradict the Defense's theory. Like Ms. Bahadoor, she didn't observe anything more than shadowy figures struggling with one another. She was of the opinion that one figure was bigger than the other, and she testified that the bigger figure was on top of the smaller figure. She was then allowed to testify that, having compared photographs of Mr. Zimmerman with photographs of Mr. Martin, it was her opinion that Mr. Martin was the smaller individual. She was further allowed to testify that it was her guess (what I'd call, impermissible speculation) that Mr. Martin was the individual calling for "help," because Mr. Martin was the smaller of the two individuals. Ostensibly a point for the prosecution.

However, Mark O'Mara confirmed that the pictures of Mr. Martin that Ms. Manalo used for purposes of comparison were photographs of an adolescent Mr. Martin. The news media, which in some quarters has consistently provided unfair coverage of the case, has plastered television sets across the nation with images of a young, smiling Trayvon Martin. One of the pictures Ms. Manalo used for comparison (in fact, it was the first photograph she referenced) was of an eleven-year-old Trayvon. She eventually admitted that perhaps she was wrong as to who was the smaller individual. What's more, the Defense established that Ms. Manalo didn't get a very good look at what was going on.

Ms. Manalo's testimony was probably a wash. However, the fact that she compared current pictures of Mr. Zimmerman with outdated pictures of Mr. Martin certainly plays into the Defense's theme of an unfair, biased and politicized prosecution.


Ms. Syrdyka's testimony was far more potent for the State than either Ms. Bahadoor's or Ms. Manalo's. However, she also couldn't provide any detailed eyewitness testimony describing the confrontation between Mr. Zimmerman and Mr. Martin. Nevertheless, she testified that she heard a cry for help, which she "felt" had come from a boy. She also called 911, the recording of which was entered into evidence in its entirety. In the recorded call, Ms. Syrdyka is heard frantically crying out: "why did he shoot him?!"

Ms. Syrdyka's testimony scored important emotional points with the jury. From an evidentiary standpoint, however, she still could not provide the State with the level of detail necessary to contradict the Defense's theory of the case. She couldn't testify with certainty that Mr. Martin called for help, nor did she see the shooting itself, which is perhaps why she had to ask the question "why."

Still, the State scored some emotional points with her testimony.


Finally, twelve witnesses into the trial, the most anticipated witness in the State's case took the stand to testify. Ms. Jeantel is the individual who was speaking on the phone with Mr. Martin at the time Mr. Martin was walking away from Mr. Zimmerman. According to Ms. Jeantel, she was on the phone with Mr. Martin at the moment the confrontation took place.

Before analyzing her testimony, it is important to note, from the outset, how problematic it is for the State that its "star witness," whom the State is depending upon to establish that Mr. Martin did not instigate the physical confrontation, did not actually see anything. She wasn't there. She heard one side of a conversation from the other end of a telephone line, while doing her hair in Miami. That, in and of itself, is problematic. Unfortunately for the State, it turned out far worse than that.

Ms. Jeantel was a train-wreck of a witness. While television pundits have attempted to debate her performance, the punditry is pure television theatre. Her performance on the stand is not subject to rational debate (although, to be sure, juries are not always rational). Ms. Jeantel was objectively horrific. On a scale of 1-10, with "1" representing the catastrophic performance of Mr. West's terrible knock-knock joke, Ms. Jeantel easily scored a negative ten.

First, she acknowledged that it was Trayvon Martin who used racial epithets; not George Zimmerman. According to Ms. Jeantel, Mr. Martin described Mr. Zimmerman as a "crazy ass cracker." Ms. Jeantel suggested to Mr. Martin that perhaps Mr. Zimmerman was a "rapist." Not only did she confirm that Mr. Martin called Mr. Zimmerman a "cracker," she also confirmed that Mr. Martin called Mr. Zimmerman a "nigga." Then, rather pathetically, she tried to claim that in her culture (North Miami), "cracker" isn't a derogatory term. Riiiiiight.

Second, she acknowledged that on at least two prior occasions, including during a recorded interview, she failed to mention the most important part of the telephone call: that Mr. Martin allegedly said the words: "get off, get off."

Third, as though her bias wasn't already obvious, she acknowledged that she was brought into the case by the Martin family legal team.

Fourth, she acknowledged that she altered her version of events for the benefit of Mr. Martin's grieving mother. What's more, she admitted that during her initial interview with the prosecutor, the prosecutor inconceivably had Mr. Martin's mother sit next to her during the entirety of the interview. She admitted that during that interview, she omitted facts for the benefit of Mr. Martin's mother.

Fifth, she acknowledged that she lied to investigators on multiple occasions, including while under oath.

Under cross examination, she admitted that she could not testify as to whether Mr. Martin or Mr. Zimmerman initiated the physical confrontation.

None of this is to say anything about her inappropriate demeanor and her hostility toward the Defense. Not to mention the fact that she used the word "retarded" to describe a question under cross examination.

Now, as any criminal litigator with trial experience knows, sometimes the prosecution has to rely on colorful witnesses, who don't act appropriately on the stand. That's a given. And it's true that such witnesses often appear "authentic." However, Ms. Jeantel's "authenticity" doesn't change the substance of her testimony. Even if the jury were to disregard Ms. Jeantel's inappropriate demeanor and forgive her for her admitted lies in the past, the jury is still left with testimony that establishes: (1) Trayvon Martin called Mr. Zimmerman a "crazy ass cracker" and a "nigga;" (2) Trayvon Martin ran from Mr. Zimmerman, but chose not to go inside his house; (3) Trayvon Martin initiated verbal communication with Mr. Zimmerman; and (4) Ms. Jeantel doesn't know who threw the first punch.

While you never can be sure how a jury will react to a witness (let's not forget that a Central Florida jury actually acquitted Casey Anthony), it is hard to imagine a worse witness. She was a titanic failure, who undermined the State's theory of the case and bolstered the Defense.


The State called Raymond MacDonald from T-Mobile to the stand, in order to admit Trayvon Martin's phone records.


The State's fourth "eyewitness" provided testimony similar to Ms. Bahadoor, Ms. Manalo, and Ms. Syrdyka, in that she didn't see any details of the confrontation between Mr. Martin and Mr. Zimmerman, but she did hear cries for help. Interestingly, however, the voices were right outside her unit. She testified that she could not tell who was the individual calling for help, but that it sounded like the individual was desperate. She also confirmed, after looking at bloody pictures of George Zimmerman, that the calls for help were consistent with having come from someone who suffered injuries like Zimmerman's. Indeed, she also testified to knowing George Zimmerman. She testified that she had never seen Mr. Zimmerman act like a "hot-head" or act with a temper. She also testified that she thought Mr. Zimmerman was just trying to help the community.

In fact, Ms. Lauer came off more as a Defense witness than as a prosecution witness. Indeed, outside the presence of the jury, the prosecutor attempted to impeach Ms. Lauer as having a pro-Zimmerman bias, based on the fact that she purportedly "follows" George Zimmerman's brother on Twitter. It turned out, however, that the prosecutor didn't understand Twitter, and that Ms. Lauer doesn't in fact "follow" Mr. Zimmerman's brother.

Again, the State's witness probably did more for Defense than for the State.


Ms. Mora was the State's fifth "eyewitness," who, like the four prior "eyewitnesses," didn't actually see much detail of the confrontation. In fact, she was standing relatively far away from the incident. She did, however, importantly testify that she saw a man wearing red and black on top of another guy, as though he were "riding" the other person. This detail is important, because Zimmerman was wearing an orange and black jacket, which had a reddish appearance. If she had seen this prior to the gunshot, it would have provided a concrete contradiction to Mr. Zimmerman's version of events. However, what she saw occurred after the gunshot, and thus doesn't contradict Mr. Zimmerman's version of events.


Mr. McKinney simply testified that not all of the community's security cameras were operable on the night of the incident, and that the incident was not captured on film.


The fact that the State called Jonathan Good as its seventeenth witness says quite a lot. Unlike the prior five "eyewitnesses," Mr. Good actually saw the physical confrontation up close and personal. It happened in his backyard. If this were a straightforward prosecution, Mr. Good would have been the State's "star witness." However, Mr. Good was a State's witness in name only. Make no mistake, Mr. Good's testimony was, from beginning to end, a corroboration of the Defense's case.

Unlike Ms. Mora, who witnessed the struggle in the dark from a distance, Mr. Good actually approached Mr. Zimmerman and Mr. Martin, and told them to "get lost." Mr. Good testified that Trayvon Martin was on top of George Zimmerman, "MMA style," "throwing blows down" on Mr. Zimmerman and "ground and pounding" Mr. Zimmerman's head. According to Mr. Good, Mr. Zimmerman was "beat up." In Mr. Good's opinion, it was George Zimmerman calling for help.

The State had to call Mr. Good, because if they didn't, it would have appeared to the jury as though the State was trying to hide Mr. Good's testimony. Of all of the "eyewitness" testimony, his is clearly the most relevant. He struck a serious blow to the State's case.


Mr. Manalo was another of the State's witnesses who helped the Defense as much, if not more, than the State. Mr. Manalo didn't see the actual confrontation, but he rushed outside after the shooting. He described Mr. Zimmerman as looking like he had his "butt beat." In fact, Mr. Manalo snapped a photograph of the back of Mr. Zimmerman's bloody head. Mr. Manalo testified that Mr. Zimmerman said, immediately following the shooting and prior to police arrival, that Mr. Martin had attacked him and that he had defended himself by shooting Mr. Martin. On cross examination, Mr. Manalo testified that he had no reason to disbelieve Mr. Zimmerman's immediate claims of self defense.

The only part of Mr. Manalo's testimony that might arguably have favored the State involved a telephone call to Mr. Zimmerman's wife. Mr. Manalo testified that when he told Mr. Zimmerman's wife over the phone that Mr. Zimmerman was involved in a shooting and was being held for questioning, Mr. Zimmerman interjected: "Just tell her I shot somebody." He also testified that he didn't think Mr. Zimmerman was in shock, and that he was acting calm.

Weighing the totality of his testimony, he certainly seems to have aided the Defense's case more than the State's.


Officer Ayala didn't shed any new light on the case. He testified that when he arrived at the scene, he and Officer Raimondo attempted to provide aid to Mr. Martin. Officer Ayala also testified that Mr. Zimmerman was compliant with officers.


Ms. Livingston testified that she treated Mr. Zimmerman's injuries at the scene. She confirmed that Mr. Zimmerman had a swollen nose, as well as two, one-inch cuts on the back of his head. She testified that she did not take Mr. Zimmerman to the hospital for his injuries. She further testified that Mr. Martin was declared dead at the scene.

Ultimately, Ms. Livingston's testimony was fairly neutral. While she established that Mr. Zimmerman didn't suffer any life-threatening injuries, she did testify that Mr. Zimmerman suffered bloody injuries to the back and front of his head.


Just as the State buried the testimony of Jonathan Good, who had the most relevant eyewitness testimony of the actual confrontation, the State buried the testimony of Officer Smith, who was the first law enforcement officer to speak with George Zimmerman.

According to Officer Smith, Mr. Zimmerman was cooperative and didn't ask for an attorney. Not only did Mr. Zimmerman explain that he acted in self defense, but he also told Officer Smith that he was calling for help and that no one would come to his aid. Most importantly, Officer Smith testified that Mr. Zimmerman's back was wet an covered in grass, indicating that Mr. Zimmerman was on his back during part of the confrontation. This testimony will prove essential during closing arguments, when Defense will remind the jury that photographs of Trayvon Martin show grass stains on the knees, whereas Mr. Zimmerman had grass stains on his back.

Yet again, Officer Smith provided more evidence for the Defense than for the State. He did, however, establish that Mr. Zimmerman didn't want to go to the hospital for his injuries.


Ms. Folgate is a physician's assistant, who treated Mr. Zimmerman before and after the shooting. Interestingly, she testified that in September 2011, Mr. Zimmerman claimed to be taking mixed martial arts classes three times a week. If Mr. Zimmerman was taking MMA classes three times a week since Septemeber, 2011, it might suggest that Mr. Zimmerman wasn't the "meek," defenseless victim of seventeen-year-old Trayvon Martin.

On the other hand, Ms. Folgate also confirmed that in her diagnostic opinion, Mr. Zimmerman suffered a broken nose on the night of the shooting. It was yet another occasion of a State's witness providing important testimony for the Defense.


After one week and twenty two witnesses, the State has not presented any evidence that George Zimmerman initiated physical contact with Trayvon Martin. The closest the State came was through the testimony of Ms. Jeantel, who bombed horrifically. Ultimately, she testified that she could not confirm who hit who first. What's more, the State has presented precious little evidence showing that Mr. Zimmerman acted with an "ill will" or an "evil intent."

The State has laid some groundwork for the lesser-included offense of Manslaughter. They've established that Mr. Zimmerman deviated from typical protocol when he got out of his car and followed Trayvon Martin. Possibly, that deviation might serve as the basis for a finding that Mr. Zimmerman acted with "culpable negligence," but that is certainly a stretch. Negligence? Sure. Culpable negligence? Probably not.

The Defense, meanwhile, has already established key facts in support of its theory of self-defense. The jury now knows that Trayvon Martin was also agitated prior to the incident, calling George Zimmerman a "cracker" and a "nigga." The jury has heard testimony that Trayvon Martin was "ground and pounding" Mr. Zimmerman "MMA style." We've heard from another witness that Mr. Zimmerman looked like he got his "butt beat." The jury has seen bloody photos of Mr. Zimmerman's head and face, as well as testimony establishing that Mr. Zimmerman's nose was broken. The jury has seen photos establishing that Mr. Martin had grass stains on his knees, while hearing testimony that Mr. Zimmerman had grass stains on his back. Moreover, the State has heard evidence that Mr. Zimmerman cooperated at the scene, and claimed instantly that he was crying for help and acted in self-defense.

Unless the State turns things around in the next week, the Defense won't have to put on a case. The State's doing it for them.

N.S.A. Surveillance Underscores Need For a Revitalized Approach to Fourth Amendment

June 14, 2013

"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it."--John F. Kennedy, April 21, 1961

Last week, the Guardian and Washington Post newspapers revealed--with the help of Edward Snowden--the existence of two secret N.S.A. programs designed to surveil internet and telephonic traffic in the United States. While the reports regarding the internet surveillance program, code named PRISM, are somewhat contradictory (the Post and Glenn Greenwald have reported that the Government is collecting data "directly" from the "servers" of American internet companies, such as Google and Yahoo!, while the internet companies have largely disputed this very important detail), there is no mistaking the import of the court order providing the N.S.A. access to "telephony metadata" from all users of the Verizon network: the Government is collecting massive amounts of information about millions of American citizens, without an individualized showing of suspicion, and without anyone outside the federal government knowing about it.

Much of the media response to these stories--particularly as they pertain to PRISM--has been reminiscent of Ed Helms in the Hangover.

This overreaction was probably driven by Glenn Greenwald's activist, hyperbolic "reporting." Those familiar with Greenwald's schtick shouldn't be surprised to learn that his initial story on PRISM was based upon an "Epic Botch," in which he misled his readers as to the nature of the program.

However, while much of the media's focus has been on the PRISM program, the far more interesting story relates to the N.S.A.'s collection of "telephony metadata" from the Verizon Network.

In response to last year's Supreme Court holding in United States v. Jones, in which the Court failed to address the question of whether prolonged GPS tracking violates an individual's reasonable expectation of privacy, I wrote: [With] the advent of data-mining, it is not far-fetched to imagine the federal government capable of collecting massive amounts of data on individuals, which could reveal an individual's personal secrets.

Now we learn that the federal government, relying on the Business Records section of the Foreign Intelligence Surveillance Act (FISA), has convinced a federal judge to order Verizon to hand over: "comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telphone number, International Mobile Subscriber Identity {IMSI} number, International Mobile station Equipment Identity {IMEI} number, etc.), trunk identifier, telephone calling card numbers, and time and duration" of every domestic telephone call made on the Verizon network.

Presumably, the government argued that the data-set from every domestic telephone call made on the Verizon Network was a "tangible thing" that was "relevant to an authorized investigation" under FISA. At the risk of sounding like a callous government apologist, it is important to note that (1) under FISA, the government is required to implement "minimization procedures," which protect against the unwarranted and unneeded collection of information from Americans; (2) the government is not using the metadata to identify any individuals by name; and (3) the information the government is collecting is information that Verizon customers are already sharing with a third-party: Verizon. What's more, under current Fourth Amendment precedent, individuals do not have a "reasonable expectation of privacy" in information shared with a third party. See, Smith v. Maryland, 442 US 735 (1979).

However, despite "minimization procedures" and current (and arguably outdated) Supreme Court precedent, the problem is rather obvious. The government is secretly applying for a secret court order in a secret court for secret reasons, and the secret court is applying a secret interpretation of the law...secretly! What's more, whatever real benefits this secret legal regime provides are...secret!

Furthermore, this metadata collection underscores an important point Justice Sotomayor made in her concurring opinion in Jones: "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers...I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

Nail, meet hammer.

The Supreme Court's Holding in KING v. MARYLAND: Welcome to Gattaca?

June 13, 2013

As promised, I'd like to address the Supreme Court's controversial holding in King v. Maryland. Truth be told, the analysis is rather straightforward and ho-hum. Unlike the Court's holding in United States v. Jones, which turned-back-the-clock on Fourth Amendment analysis, the Court's holding in King applies a traditional, noncontroversial analysis. The Court restates its earlier assertion in Illinois v. McArthur: "when faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." The Court then explains that (1) a buccal swab for DNA is a minimally intrusive search; and (2) upon the arrest of individuals for a "serious crime," law enforcement officers collect buccal swabs for a special purpose: identifying arrestees.

If only the Court was correct that the police collect DNA to "identify" arrestees. If that were the case, the collection of DNA upon arrest would be little different than the collection of fingerprints or the taking of booking photos. However, as Justice Scalia points out in his dissent, the police do not collect DNA to identify arrestees; they collect DNA for the sole purpose of solving unsolved crime. Solving crime is most definitely not a "special need" of law enforcement; it is the entire purpose of law enforcement. If the need to solve unsolved crimes justifies an exception to the warrant requirement of the Fourth Amendment, there is no longer a purpose to the Fourth Amendment. The Court understands this, which is why the Court adopts the fictitious notion that DNA is collected for "identification."

It is true, of course, that arrestees have a diminished expectation of privacy and that this affirmed policy of DNA collection only applies to arrestees of "serious crimes." We're not living in Gattaca yet!

However, as Justice Scalia points out in his dissent, the fact that this policy only affects those arrested for "serious crime" is somewhat misleading. It is already the practice in all 50 states to collect DNA swabs of all individuals convicted of a felony offense. Thus, those individuals guilty of committing a "serious crime" were already required to give up their DNA, prior to the Court's holding in King. The only individuals who will be affected by this holding, therefore, are individuals who were arrested, but not convicted. That's right: the Court has gone out of its way to adopt a position that law enforcement may collect DNA from individuals who were either: (a) wrongfully arrested; (b) were arrested without enough evidence to convince a jury beyond a reasonable doubt that the charged crime was committed; or who (c) negotiated and/or litigated a resolution, resulting in something less than a conviction.

This leads to an interesting potential problem. Prior to the adoption of a policy of collecting DNA samples from all individuals arrested for "serious crime," DNA profiles were uploaded into CODIS only when: (1) a DNA sample was collected pursuant to a DNA swab after conviction of a felony offense; (2) a DNA sample was collected pursuant to a lawful warrant, or the consent of the individual swabbed; or (3) when a DNA sample was collected from the scene of a crime. Thus, prior to this new policy, when investigators received a "CODIS hit" indicating that a known DNA sample matched to an unknown DNA sample collected from a crime scene, there wasn't much avenue to litigate the basis of the initial "CODIS hit," because the source of the known DNA sample was only collected pursuant to a fairly controlled process.

However, now that law enforcement may collect DNA samples upon arrest and upload the samples into CODIS, there is a far greater likelihood that some DNA samples will make their way into CODIS based upon unlawful arrests. This poses quite a problem. Typically, after receiving a "CODIS hit," law enforcement will receive a warrant to collect a new DNA swab of the defendant, which they will then compare to the DNA sample taken from the crime scene, to confirm the "CODIS hit." The prosecution of the case will hinge upon the second, controlled DNA test. The warrant to collect the DNA for this second test is based upon the probable cause generated by the initial "CODIS hit." However, if the initial "CODIS hit" is the result of a DNA swab that was collected pursuant to an unlawful arrest in violation of the 4th Amendment, then any subsequent investigation based upon that "CODIS hit" is tainted.

This potential problem will certainly add to the complexity of some criminal litigation. For instance, it is conceivable that an individual wrongfully arrested in Chicago, Illinois will generate a "CODIS hit" for a crime committed in Boca Raton, Florida. The litigation in Palm Beach County will partly depend upon the validity of police conduct in Cook County, Illinois, and would conceivably require Palm Beach County prosecutors to fly-in out of state law enforcement officers to testify in a suppression hearing.

What's more, the already back-logged CODIS system will now have to bear the burden of analyzing what is sure to be an influx of millions of new DNA samples. This will undoubtedly result in delays in receiving bonafide "CODIS hits."


June 5, 2013

Justice Scalia is no doubt a controversial jurist. He is the bane of the American left-wing on numerous hot-topic legal questions, particularly as they relate to abortion, the Establishment and Free Exercise clauses of the First Amendment, and the Second Amendment. What's more, based upon his statements in oral argument, he is likely to run afoul of left-leaning Americans on the issue of same-sex marriage, which the Court will address later this summer. However, as anyone who watches the closely divided Court on a regular basis already knows, those hot-topic cases are not the general rule. Often, the Court hands down opinions with outcomes that don't closely reflect the partisan divide America is accustomed to. This week, Justice Scalia employed his famously incisive wit and logic in a scathing dissent in King v. Maryland, in which Justice Scalia was joined by three traditionally liberal jurists: Justices Ginsburg, Sotomayor, and Kagan.

Of course, I will follow-up this post with a discussion of Justice Kennedy's majority opinion, which was joined by Justices Roberts, Thomas, Breyer, and Alito. The Court held that the police may collect DNA samples from individuals arrested for "serious crimes," prior to conviction, without a warrant and without suspicion. But before we discuss the majority's holding, I want to discuss the nerdy awesomeness of Justice Scalia's dissent. Let's break it down!

(1) Great Zingers

The dissent wonderfully illustrates the biting prose of Justice Scalia. In what is sure to be an instantly classic line, Justice Scalia writes: "But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection." If Justice Scalia were delivering this line in person, I would absolutely expect a microphone drop.


The remainder of his opinion mirrors the tone and contempt of some of Justice Scalia's other classic dissents. For instance, one of my all-time favorite Scalia quips comes from his dissent in Roper v. Simons. In Roper, the Court held that there was a "national consensus" against executing individuals for crimes committed while the condemned was still a juvenile. Why did the Court feel there was a "national consensus" on this issue? The Court found a "national consensus" in the fact that 18 different death penalty States forbade executing an individual for a crime committed while the individual was a juvenile. In response, Justice Scalia wrote: "Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus."

Justice Scalia employed similar language in his dissent in King. For example, in response to Justice Kennedy's bizarre suggestion that the police identify arrested suspects by comparing their faces against Wanted Posters of previously unidentified suspects, Justice Scalia writes: "No minimally competent speaker of English would say, upon noticing a known arrestee's similarity 'to a wanted poster of a previously unidentified suspect,' that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified..." ZING!

Similarly, after painstakingly outlining why the Court's "identification theory" is non-sensical, Justice Scalia writes: "Against all of that, it is safe to say that if the Court's identification theory is not wrong, there is no such thing as error." Ba-ZING!

(2) Outrageously Sarcastic Footnote #6

Casual readers of Supreme Court opinions often skip the footnotes. However, the footnotes occasionally contain little easter eggs of hidden sarcasm or humor. Such is the case with Justice Scalia's footnote #6. Justice Scalia writes: "I therefore dissent, and hope that today's incursion upon the Fourth Amendment, like an earlier one[6], will some day be repudiated." The footnote after the words "like an earlier one," leads the reader to this little sarcastic citation:

"Compare, New York v. Belton, 453 U.S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U.S. 332 (2009) (on second thought, no)."

In the universe of parenthetical summaries of cited case-law in Supreme Court opinions, that sarcasm is outrageous! ZING!

(3) There Is A Visual Aid

Unfortunately, I don't know how to cut-and-paste this portion of the dissent to this blog post. Suffice it to say, Justice Scalia uses a graphic to help the reader visualize the Court's error. Awesome.

(4) Justice Scalia Uses the Word: "panopticon"

I think it is fair to say that Justice Scalia's dissent had a good number of people reaching for their dictionaries, after reading the sentence: "Perhaps the construction of such a genetic panopticon is wise." Panopticon?! I think I have a new favorite word!

It turns out that a panopticon is a circular architectural design for a prison, in which a central watch-station allows a watchman to observe a large number of inmates who are arranged in a circle around the watch-station, without the inmates' knowledge.panopticon1.jpg

This design was the brainchild of the English utilitarian philosopher (and eccentric) Jeremy Bentham. This, of course, leads us to our 5th reason why Justice Scalia's dissent is awesome...

(5) Justice Scalia Subtly Calls Out the Majority Opinion as Utilitarian.

You know you've descended into the depths of legal nerdiness when you compare your opponent's legal argument with the 18th century philosophy of Jeremy Bentham. Justice Scalia does just that.bentham1.jpg

He writes: "If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search...I will therefore assume that the Court means that the DNA search at issue here was useful to 'identify' King in the normal sense of that word--in the sense that would identify the author of Introduction to the Principles of Morals and Legislation as Jeremy Bentham."

What? That's kind of a bizarre reference, isn't it? Coupled with his use of the word "panopticon," it seems rather obvious that Justice Scalia is trying to say something. What's he trying to say?

He's saying that the majority opinion is utilitarian in its approach. Zing!

Why is that a zinger? Well, utilitarianism is a philosophical/political theory, which roughly holds that government should act to promote the general happiness of the people. Thus, if an act hurts some people, but tends to promote the happiness of the majority, then the act is moral and good. As applied to this case, Justice Scalia seems to be suggesting that the Majority opinion is ignoring an obvious violation of the Fourth Amendment, because the violation serves the purpose of bringing criminals to justice. In other words, there is a real "utility" to the Fourth Amendment violation, and thus the Court is approving the violation of the Fourth Amendment. Sure, there is a harm to some people, but society benefits as a whole.

Obviously, such a utilitarian approach is antithetical to our constitutional system of individual rights.

In all seriousness, the Court's holding in King v. Maryland is quite an important decision, which will undoubtedly affect criminal litigation in Palm Beach County, Broward County, and Miami-Dade County. I will analyze the Court's holding in my next post.