You are browsing the archive for George Zimmerman.

The plot thickens regarding the provenance of Zimmerman’s “original painting”

2:36 pm in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog

Wednesday, December 18, 2013

Good afternoon:

I spent the morning attempting to identify the photographer who produced the stock image of the American flag that George Zimmerman apparently used to produce his “original painting” that he is offering for sale on ebay. I use the word “apparently” because it looks like he downloaded the stock photo from Flickr, photoshopped it by adding the words and changing the dimensions and colors, projected the image onto a canvass and painted the image rather like painting by numbers.

If you have any doubt about how he did it and whether he significantly changed the original, check out this video.

(h/t to Rachael and Dolphinocean for finding this video)

The Getty image

Getty identifies the photographer as Manuela Krause and states that she owns the copyright.

Getty offers her photograph for sale at prices ranging from $15 (280 x 174 px (3.89 x 2.42 in.) – 72 dpi – RGB) to $361 (4972 x 3082 px (16.57 x 10.27 in.) – 300 dpi – RGB).

The image bears Getty’s watermark to prevent people from downloading and reselling it as their own work. Upon purchasing the image, the purchaser can download it without the watermark.

The licensed or authorized use of the photograph is “royalty free,” which means that the purchaser can resell the image commercially after purchasing it from the seller.

This does not mean that it goes into the public domain where anyone can use it for any purpose without attribution.

Pursuant to the Berne Convention, Manuela Krause retains the copyright and moral right to be credited as the photographer who created the image. Neither Getty nor anyone who purchases the image from Getty can claim to have created the photograph. Any person or organization who does claim to have created it would violate her copyright. Therefore, Manuela Krause has a potential copyright infringement claim against Zimmerman, assuming she can prove that he copied her image.

EarlG in the DU article said they purchased the right to use the Getty image on tee-shirts more than 10 years ago. This significantly predates any other claim to own the right to sell the photograph.

The Shutterstock Photo

The Shutterstock image bears their watermark, which prevents people from using it or representing it as their own. The image is displayed on the first of four pages displaying 381 images that belong to the Awen Art Studio in Plovdiv, Bulgaria. The Awen Art Studio’s main page at Shutterstock says that it has been a member of Shutterstock since 2009.

No information is displayed indicating when the image was created, by whom or when they acquired it. The studio identifies the image as a stock photo of an American flag, claims they have the copyright, and identifies the image with this identification number: 74692756.

Shutterstock is also selling the right to use the image commercially without having to pay a royalty fee.

I do not know when, where, or under what circumstances the Awen Art Studio acquired the photograph.

The Flickr Photo

Looks like Hoch Sollst Du Leben may not be a real person. His name in German means: High Thou Shalt Live.

Hoch Sollst Du Leben posted his “copyrighted” image in 2006, three years before Awen Art Studio registered at Shutterstock.

The photograph of the flag on Flickr that I linked to in my article yesterday leads to a 404-page-not-found message.

(h/t to Donna at my site who tipped me off to this development)

Removing the site, instead of calling a press conference and expressing indignant outrage, suggests that de Leben may not be on the up and up. I doubt he created the image, but cannot prove where or how he obtained it. He may have sold the image on a royalty free basis to any number of people or organizations, including the Awen Art Studio, but neither he nor any subsequent purchaser can legitimately claim to own the copyright, which remains with Manuela Krause.

Anyone, including George Zimmerman, could have downloaded the image for free from Flickr because the image was not protected by a watermark.

Conclusions

Since the image was protected by a watermark at Getty and Shutterstock, I doubt Zimmerman obtained it from either source, unless he paid for it.

I regard that as a theoretical but improbable possibility.

I suspect, but lack sufficient evidence to prove that GZ obtained the image for free by copying it from Flickr. I cannot eliminate the possibility that he projected a watermarked image onto a canvas and painted over the watermark, but regard that possibility as unlikely.

I believe EarlG at Democratic Underground has demonstrated the process that George Zimmerman used to create his “original painting.”

I also believe that he fraudulently misrepresented that he created it. A person cannot take another person’s work, tweak it a bit, and legitimately claim that they created it. In order to legitimately claim they created the work, they would have to change it in some significant manner. I do not believe the process that EarlG described meets that standard.

Finally, we cannot forget that the value of his “original painting” is based on his claim that he created it. If John Smith were offering it for sale at an ebay auction, I doubt it would sell for more than $20.

As I’ve said all along, I believe Zimmerman’s effort to sell his “original painting” is an attempt to commit criminal fraud and not protected by the fair-use exception to copyright law.

Definitive conclusions require further investigation.

Do you trust Shellie Zimmerman?

8:28 am in Uncategorized by Masoninblue

 

Cross posted from Frederick Leatherman Law Blog

We have been left dangling by ABC News, which reported yesterday that Christi O’Connor, an investigative journalist in Florida, contacted them and, after disclosing that she had interviewed Shellie Zimmerman

said that during their “stunning” hourlong interview, the acquitted killer’s wife said that her husband has “beaten down her self-esteem,” but she is “looking forward to getting her life back.”

Shellie Zimmerman told O’Connor that she left George after an argument and went to her father’s house on Saturday, the night before the shooting. She said she was not at home on Sunday before the shooting.

If we assume she is telling the truth about that, then we can confirm our suspicion that George lied when he told the police that he and Shellie mentored kids at their house on Sunday afternoon before he started out intending to go to Target to do their weekly shopping. The trip to Target never made any sense anyway, since he only had some change and maxed out credit cards.

Due to excellent work by Tschoupi, Marinade Dave, and LLMPapa we already knew that George lied about spotting Trayvon at Frank Taaffe’s house as he was on his way to Target because Trayvon was sheltering from the rain beneath the roof at the mailboxes and talking to Rachel Jeantel on his cell phone before George even left his house. Either the prosecution never figured this out or they decided not to exploit his lie at trial.

She refused to disclose what they argued about or whether they are still together. When asked if she was disappointed that he did not support her by accompanying her to court for her plea and sentencing, she said, “I always want my husband’s support.”

She said she believed his claim of self-defense and did not believe he profiled and murdered Trayvon because that is “not his way.”

O’Connor knows how to tease:

O’Connor, who is working on a book about the George Zimmerman trial, also hinted that there was evidence that was mishandled, saying that during the sensational trial, “there were so many untruths told.”

“What the jury never heard could have led to a different verdict,” she said.

My take: Since Shellie has not decided whether to move on and get a divorce, I think we need to take most everything she says about George and their relationship with a grain of salt. With the exception of her criticism of his photo-op visit to the KelTec factory, which even O’Mara’s office criticized, her careful choice of words appeared to me to betray a desire to avoid saying anything that might offend him or implicate him in any criminal wrongdoing, including the perjury.

I could not help but feel that I was watching an elaborately scripted performance, from her expensive makeover and bright slash of moistened magenta lipstick to her careful navigation around potentially damaging subject matter.

She remains under his toxic influence and for that reason alone, I cannot accept what she says as true absent independent verification.

What do you all think?

She is an admitted perjurer.

Do you trust Shellie Zimmmerman?

Why would an Afro-Peruvian defendant want an all white jury

11:13 am in Uncategorized by Masoninblue

Cross Posted from Frederick Leatherman Law Blog

Saturday, March 2, 2013

Good morning.

I write today to warn everyone regarding a probable defense effort during jury selection to exclude all potential jurors who are black, notwithstanding the recent defense claim that the defendant is Afro-Peruvian, whatever the hell that means.

The simple truth is that this defendant self-identified as white until after he killed Trayvon Martin. When he was accused of racially profiling Trayvon, he rather conveniently decided that calling himself White Hispanic and more recently Afro Peruvian would dispel any suspicions that the killing was racially motivated.

Instead, given the convenient timing of his declarations and his confusion of race with nationality unintentionally showcases his intellectual limitations and the desperate lengths to which he will go to deny that he is a racist.

He doth protest too much, methinks.

Therefore, do not be surprised if the defense attempts to use its peremptory challenges to exclude black jurors from the jury.

Recall, that unlike a challenge for cause, a lawyer does not have to explain the basis for a peremptory challenge. Recall too, that the SCOTUS prohibited the use of peremptory challenges by prosecutors to systematically exclude blacks from serving on juries with black defendants in Batson v. Kentucky, 476 U.S. 79 (1986), because such systematic exclusion violates a defendant’s Fourteenth Amendment right to Equal Protection of the laws. See also Miller-El v. Dretke, 545 U.S. 231 (2005).

We have an interesting wrinkle in this case because, if it happens, the defendant will be the party systematically excluding jurors because they are black or non-white, whereas, in Batson and Miller-El the prosecution systematically excluded blacks violating the defendant’s right to equal protection of the laws.

The issue the prosecution must be ready to argue and Judge Nelson must be ready to decide before jury selection is whether the Batson and Miller-El prohibition against the prosecution’s discriminatory use of peremptory challenges applies equally to a defendant.

I believe the answer is “yes,” because to rule otherwise would constitute official judicial approval of discrimination against black jurors in jury selection, so long as the defendant is doing the discriminating. I do not see that happening, if for no other reason than blacks have just as much right to serve on juries as whites.

Consider this language from Justice Blackmun’s majority opinion in JEB v. Alabama ex rel. TB, 511 U.S. 127, 128-129 (1994), in which the Court extended the Batson rule to gender.

In Batson v. Kentucky, 476 U. S. 79 (1986), this Court held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. The Court explained that although a defendant has “no right to a `petit jury composed in whole or in part of persons of his own race,’ ” id. , at 85, quoting Strauder v. West Virginia, 100 U. S. 303, 305 (1880), the “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria,” 476 U. S., at 85-86. Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U. S. 400 (1991); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. McCollum, 505 U. S. 42 (1992).

Although premised on equal protection principles that apply equally to gender discrimination, all our recent cases 129*129 defining the scope of Batson involved alleged racial discrimination in the exercise of peremptory challenges. Today we are faced with the question whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race. We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.

(Emphasis added)

White defendants certainly do not have a right to an all white jury. As Justice Blackmun said, they have a right to a jury selected in a non-discriminatory manner.

Therefore, the selection process must be non-discriminatory and that must necessarily apply to all parties and to the Court.

A final thought to consider:

If the defendant is the race-blind Afro-Peruvian that he claims to be, then he ought to submit his case to an all black jury.

What do you think the odds are that he would agree?

CNN article promotes racist description of Trayvon Martin case

7:57 am in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog

Protesters hold a 'We Are Trayvon Martin' banner.

A Trayvon Martin "Million Hoodies" rally last year.

Thanks to all who participated in yesterday’s memorial to Trayvon Martin.

I write today to express disgust and dismay regarding this excuse for journalism by Steve Almasy of CNN, Zimmerman’s lawyer works to dispel racial overtones in Trayvon Martin case.

The focus of the piece is Mark O’Mara’s “struggle” to get people to pay attention to the evidence instead of racism.

Whatever the outcome of the Trayvon Martin case, it will be viewed less as a determination of the shooter’s guilt or innocence and more as a victory or loss for civil rights, George Zimmerman’s lawyer fears.

Mark O’Mara said he has been busy trying to dispel the racial overtones in the case by getting out more evidence about his client.

Thereafter, we get the usual he-said-she-said description of the case interspersed with O’Mara’s unchallenged mischaracterizations of the evidence followed up with this description of Benjamin Crump as a rabble rousing troublemaker pushing the race card.

O’Mara indicated at trial he will dissect the recording of Zimmerman’s 911 call and point to evidence of the wounds Zimmerman said he suffered that night.

“I believe, you know, again, the evidence is what it is and that’s for a jury to determine,” O’Mara said. “But a close reading or looking at that tape and all the evidence that followed, particularly George’s injuries and Trayvon’s lack of injuries but for the fatal gunshot, suggest that George did not begin the fight, did not continue the fight and actually was the victim of the attack rather than the other way around.”

But a lawyer for the Martins said the fight against “senseless gun violence” will continue.

“He went home and slept in his bed the night he killed Trayvon,” attorney Benjamin Crump said. “And that wasn’t equal justice.”

Crump then led a chant of “Hoodies up! Hoodies up!” at the vigil.

This false concoction is presented with a cherry on top in the form of the optically distorted and likely photoshopped digital photo of the defendant seated in the back seat of a patrol vehicle with a bump on his nose and blood on his mustache. CNN has no excuse for not knowing that the photo presents a false picture because the police photos taken at the station house a few hours later with a much better camera under good lighting show a barely visible injury with little or no swelling or distortion to the shape of the nose.

As all of us know, despite conceding that his client was the aggressor, O’Mara has been shoving his demonstrably false “bloody” photograph in front of every camera he can find in pursuit of his easy-to-disprove false narrative that the peaceful and nonviolent Trayvon for no apparent reason attacked and attempted to kill the defendant with his bare hands in the middle of his phone conversation with his girlfriend after successfully running away from the defendant who had been stalking him in a vehicle and then on foot contrary to a police dispatcher’s warning.

The simple truth is this defendant has no defense and the only mystery in this case is why anyone believes that the he did not hunt, confront, and murder Trayvon Martin for the heinous crime of walking while Black in the rain with his hoodie up.

I said long ago and I will repeat it today:

Anyone who believes the defendant is innocent is a racist and anyone who contributes money to his defense is a stupid racist.

Let there be no mistake: Although he claims otherwise, Mark O’Mara and his client are deliberately appealing to racial hatred and fear of young Black males to literally get away with murder.

That is what this case is all about and shame on CNN for not reporting the truth.

Read the rest of this entry →

Zimmerman: Selection of Experts to Disprove Zimmerman’s Claim of Self-Defense

12:28 pm in Uncategorized by Masoninblue

Cross Posted From Frederick Leatherman Law Blog

George Zimmerman

Caricature of George Zimmerman

Lonnie Star, a person who comments regularly at my site, wrote the following comment about George Zimmerman’s claim that Trayvon Martin jumped him and was slamming his head repeatedly into the ground:

Once the person on the ground tightens their neck muscles, your only way to lift their head is to lift their entire upper body. Obviously that’s going to be too hard to do, if you’re sitting on their upper body.

If you can’t pick the head up, you can’t slam it back down. Try it with someone, you’ll come away with the impression that it’s just not possible. If you are equal or lighter than the person you are straddling, the mount position is easily defeated if you aren’t trained to maintain it.

GZ has coupled an impossible attack with an unstable perch and tried to make a life threatening event of it. In fact he goes so far as to say that this absurdity actually succeeded many times, taking him to the edge of mortality.

Comparatively it’s as if GZ was saying that TM was standing ten feet away, swinging his fist so fast and hard, that the wind was tearing his head off his shoulders. It only sounds possible in the eye of the imagination. In practice it’s so unworkable it’s silly!

This is one of several comments that Lonnie and I exchanged last night relative to his idea to reenact in the courtroom Martin’s alleged effort to kill Zimmerman by gripping the sides of Zimmerman’s head and repeatedly slamming it into the concrete sidewalk.

I like the idea, but a reenactment is not possible because, as I explained,

Reenactments have to be agreed to by both parties and the judge. They also have to accurately reproduce what happened and here there is no agreement to what that was and the risk of the unpredictable is too high and the stakes are too high for it to happen.

Since a courtroom reenactment is out, how would a prosecutor disprove this part of Zimmerman’s story?

Behold! A teaching moment has appeared.

This was my answer earlier this morning.

The applicable evidentiary rule is Rule 702, which addresses the use of experts.

First, this is a matter where expert testimony would assist the jury to determine a fact in issue.

Second, you need one or or more experts qualified by education, training or experience to testify.

If I were BDLR, I would begin the search for an expert by contacting an expert in kinesiology, I also would check with a sports medicine specialist, someone who designs football and motorcycle helmets and a physical therapist.

Last, but not least, I would contact the reigning MMA World Champion.

This is how lawyers think creatively.

I have previously discussed Rule 702 in, Zimmerman: How Will the Defense Deal with the Terrified Scream?
Read the rest of this entry →

Zimmerman: O’Mara Adds Sanford Police Officials to Defense Witness List

8:11 am in Uncategorized by Masoninblue

Cross Posted from Frederick Leatherman Law Blog

A Sanford Police cruiser

Photo: Donald Lee Pardue / Flickr

Rene Stutzman reported late yesterday in the The Orlando Sentinel:

George Zimmerman’s lawyers Wednesday notified prosecutors that their witness list now includes a who’s who of the Sanford Police Department’s chain of command at the time of Trayvon Martin’s death, including the police chief, major crimes captain, sergeant and case detectives.

Wednesday’s defense witness list has on it a dozen names, including former chief Bill Lee; Bob O’Connor, the major crimes captain who oversaw the investigation; Lt. Randy Smith, the former sergeant who supervised the detectives investigating the case; and lead Investigator Chris Serino.

As I have written here and here, this hullabaloo is much ado about nothing, as far as the Zimmerman case is concerned.

The reason is that the opinions of the various individuals regarding the sufficiency of the evidence against Zimmerman are irrelevant and inadmissible at Zimmerman’s trial.

The scheduled depositions may have an impact, however, on the ongoing federal investigation into whether Zimmerman may have violated federal laws prohibiting hate crimes when he killed Trayvon Martin.

I said “may” because I suspect that the federal investigation may have widened to include investigating the identified individuals and others for conspiring to conceal Zimmerman’s commission of the murder by not charging Zimmerman with a crime.

I think they would be well advised to consult with counsel before their scheduled depositions to discuss whether they should assert the Fifth Amendment and refuse to answer any questions pertaining to the investigation and their respective roles.

I believe there is much more to this story, so no one should be surprised if the depositions are suddenly cancelled without explanation.

Zimmerman: Judge Nelson Should Fine Mark O’Mara $1,500 for Publicizing his Motion for Prophylactic Sequestration

11:19 am in Uncategorized by Masoninblue

Cross Posted from Frederick Leatherman Law Blog

Mark O'Mara gives a press conference

Zimmerman lawyer Mark O'Mara (Photo: Werth Media / Flickr)

I believe Judge Nelson should fine Mark O’Mara $1,500 for posting his Motion for Prophylactic Sequestration of Witnesses in the Zimmerman case on his website.

I criticized this bizarre motion in Zimmerman: Defense Motion for Prophylactic Sequestration of Witnesses Reaches a New Low.

I said,

First, O’Mara is revealing the opinions of cops overseeing an investigation. Their opinions are irrelevant and inadmissible. The evidence is whatever it is and it alone constitutes probable cause to believe a crime was committed or it does not.

Second, revealing their opinions in a motion is an underhanded way of creating an excuse to publicize that they opposed charging Zimmerman with a crime.

Third, if they were genuinely concerned about a need to order witnesses to not collaborate with each other, they should have filed the motion under seal.

Fourth, it would have been in the best interest of the defense to have the witnesses collaborate with each other so that they all objected to filing criminal charges, but that sounds like what they were going to do anyway. Therefore, there was no need for the relief he sought in the order.

I concluded:

For all of these reasons, seems pretty obvious to me that the real purpose of the motion was to publicize what should have been kept private; namely, that the brass did not want to charge Zimmerman.

The more that I think about this motion the more irritated I become.

The scope of permissible discovery is very broad and not only includes the right to discover all information relevant to the lawsuit; it also includes the right to discover all information that might reasonably be expected to lead to the discovery of relevant information.

Because the scope of permissible discovery is so broad, there have to be some limitations on what the lawyers can do with the information they obtain through discovery. Keeping the information private is one such limitation.

Let us now take a look at depositions.

Read the rest of this entry →

Zimmerman: LLMPapa is in the House with An Attorney’s Tightwire

7:51 am in Uncategorized by Masoninblue

Cross Posted from Frederick Leatherman Law Blog

LLMPapa posted a new vid in a comment early this morning that perfectly captures the plight of the criminal defense attorney. I dedicate this post to him and all the fine work he has done on the Zimmerman case.

I also recommend it to all of my brothers and sisters at the National Association of Criminal Defense Lawyers (NACDL) who have labored so long and hard for their clients under the most difficult of circumstances and been in this situation countless times.

With love and respect to all of you.

Fred

Cross Posted at Firedoglake and The Smirking Chimp.

Zimmerman: The Defense Subpoenas for School Records and Social Media Accounts Were Proper

9:59 am in Uncategorized by Masoninblue

George Zimmerman

Cross Posted from Frederick Leatherman Law Blog

Diary of a Successful Loser posted the following comment last night after I went to bed. It raises several important issues, so I have seized it as an opportunity for yet another teaching moment.

” At times I get the feelings that O’Mara really does not believe in GZ’s innocence. He mentioned being accused of digging up stuff on Trayvon and countered that with GZ’s Constitutional rights to have a lawyer try his best. I have yet to hear O’Mara say that he really and honestly believes in GZ.”

You will rarely hear a lawyer say that on behalf of any client because lawyers are not supposed to judge their clients or vouch for them. They have a duty to represent each client zealously to the best of their ability, whether the client is innocent or guilty.

Absence of vouching for the innocence of a client should never be interpreted as evidence that the lawyer believes his client is guilty.

If I were representing Zimmerman, I would have asked for the same stuff he’s asking for.

Look at it this way.

Assume GZ were convicted of murder 2 and O’Mara had not presented any character evidence that TM was kown to be an MMA-style fighter and aggressive bully who picked fights. As I have stated elsewhere, such character evidence would have been admissible regarding who was the aggressor.

Let’s put aside and forget for the moment that introducing evidence of that pertinent character trait would open the door to allow the State to present evidence that Zimmerman was an aggressive bully.

Further assume that O’Mara had not subpoenaed TM’s school records and they did contain evidence that TM was an MMA-style fighter and aggressive bully who picked fights. I do not believe this is true, but let’s assume that it is for purposes of this teaching moment.

Zimmerman would have a great ineffective assistance of counsel argument against O’Mara that could result in the case being reversed and remanded for a new trial.

The Sixth Amendment established the right to effective assistance of counsel. The SCOTUS defined what constitutes effective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984).

The Strickland test is a two-part test that basically establishes a minimal standard of performance that a lawyer must provide to comply with the Effective-Assistance-of-Counsel Clause of the Sixth Amendment. If a lawyer’s level of performance (1) falls below this minimal standard and (2) the lawyer’s error is so deficient as to undermine confidence in the outcome, a reviewing court must undo the damage. If the outcome was a guilty verdict by a jury, the case must be reversed and remanded for a new trial.

Wikipedia has a good summary:

The Supreme Court began its decision with the idea that the Sixth Amendment right to counsel “exists, and is needed, in order to protect the fundamental right to a fair trial.” A fair trial is one in which “evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Criminal defendants require counsel’s skill and knowledge in order to be able to successfully rebuff the State’s attempt to imprison or execute them. Accordingly, the Court has ruled that counsel must be appointed for criminal defendants if they cannot afford to hire their own counsel. But the fact that “a person who happens to be a lawyer is present at trial alongside the accused… is not enough to satisfy the constitutional command.” Counsel must play the role in the adversarial system that allows the system to produce just results. Hence, the right to counsel is the right to the effective assistance of counsel.

A claim that counsel was ineffective, then, has two components. First, the defendant must show that counsel’s performance was “deficient,” such that counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Second, this deficient performance must be so serious as to deprive the defendant of a fair trial. Without these two showings, “it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”

In order to show that counsel’s performance was “deficient,” the defendant must show that it fell below an “objective standard of reasonableness.” The legal profession is capable of maintaining standards that justify the law’s presumption that counsel ordinarily serves his function in the adversary system. This includes such basic duties as assisting the defendant and showing him undivided loyalty by representing him unburdened by any conflict of interest. Counsel should advocate the defendant’s case, consult with the defendant on the important decisions and keep him informed of important developments in the course of the prosecution. But these basic duties do not serve as a “checklist” for counsel, for “no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Counsel must have “wide latitude” to make “reasonable tactical decisions,” lest the requirements for constitutionally effective assistance distract counsel from “the overriding mission of vigorous advocacy of the defendant’s cause.” Judges who evaluate ineffective assistance claims should, in turn, be highly deferential to counsel’s decisions and avoid scrutinizing them in hindsight. Harsh scrutiny would encourage the proliferation of ineffective assistance claims and “dampen the ardor and impair the independence of defense counsel.”

A criminal defense attorney has a duty to investigate a case. This duty usually includes hiring an investigator to locate and interview witnesses. In a case like this, it also includes hiring consulting experts in police procedures and forensics to review what the police did and to evaluate the procedures used and the results obtained by crime lab personnel testing evidence in the case.

More pertinent to our discussion, the duty to investigate includes subpoenaing records that may contain relevant information or that might reasonably be expected to lead to the discovery of relevant information, unless those records have been provided in discovery.

O’Mara’s decision to subpoena school records and social media accounts (Facebook and Twitter) is something I would have done and I expect every competent criminal defense lawyer also would have done.

Whether there is anything relevant and admissible in any of those records remains to be seen.

My concern today is that O’Mara might “inadvertently” publish the records on his website, whether they contain relevant information or not. The records are protected by privacy statutes because he is a juvenile, they contain private information about him and they are supposed to remain private, even after they are turned over to O’Mara. He certainly knows he should not publish them on his website or release them to the media, and he would have some serious ‘splainin’ to do, if he does. The my-secretary-did-it card is practically unavailable because the State has already played it.

Recall that the State published Zimmerman’s woeful junior college records in violation of his right to privacy and quickly acknowledged and apologized for the “clerical mistake.”

The apology did not unring the bell, of course, and now the world knows Zimmerman was a failing student.

Inexplicably adding to Zimmerman’s woes, O’Mara failed to make a sufficiently specific and timely objection to the State’s release of W9′s statements claiming that Zimmerman had molested her for a 10-year period beginning when she was 6-years-old and he was 8-years-old.

In my professional opinion, O’Mara’s failure, although obviously unintentional, was a clear violation of the objective standard of care that a lawyer should provide to his client under Strickland v. Washington. Whether it turns out to be material to the outcome of this case remains to be seen.

If Zimmerman is convicted by a jury and a reviewing court decides that O’Mara’s error materially affected the outcome of the trial, the conviction would be reversed and the case remanded for a new trial.

Since I identified and commented on his miscue at the time, I think it’s only fair that I approve of his use of subpoenas, as it is something I would have done.

To be clear, I do not believe he will find the information that he is looking for. Nevertheless, I believe he is entitled to look for it.

I hope this clarifies the legal issues regarding the subpoenas.

Zimmerman: Lawyers Lawyers Everywhere — Important Hearing Today at 1:30 pm EDT

8:49 am in Uncategorized by Masoninblue

Cross Posted from Frederick Leatherman Law Blog

Lawyers for prosecution, defense and various news media organizations will be in court this afternoon before Judge Debra Nelson to argue about various discovery related issues in the Zimmerman case. This should be interesting, so you may want to pay attention.

The always reliable and accurate Frances Robles of the Miami Herald has the breakdown:

Assistant State Attorney Bernie de la Rionda filed papers Thursday in Seminole County Circuit Court asking a judge to muzzle defense attorney Mark O’Mara, whom the prosecutor accuses of taking to the Internet to try his case in the media.

“Unless defense counsel stops talking to the media about the case, in person or by use of defendant’s website, it will (be) more difficult to find jurors who have not been influenced by the media accounts of the case,” de la Rionda said. ” … An impartial jury could never be seated.”

De la Rionda asked Circuit Judge Debra Nelson to issue a gag order, which would silence the defense, prosecutors, law enforcement and any of the lawyers’ employees. If the judge agrees, lawyers and investigators would not be allowed to make any statements outside the courtroom about the case, evidence, credibility of witnesses or possible sentences. If the judge allows it, they would even be kept from opining about Zimmerman’s guilt or innocence.

I am not surprised by the State’s motion. The defense has been trying its case in the Court of Public Opinion for months now and the prosecution has at long last run out of patience.

Of course, the prosecution has benefited more than the defense from this strategy. After all, who can forget George Zimmerman’s appearance on the Sean Hannity Show. His smirks, denial of regret, and shifting of responsibility for Trayvon Martin’s death onto God Almighty Himself has to be one of the greatest moments in network television history for this still young second decade.

Although there may still be more gold to be mined in the proverbial “them thar hills,” I think the prosecution comprehends the notion of diminishing returns and wants to cash-in its winnings and move on to other pleasantries of a somewhat more formal nature.

The defense and media lawyers will be objecting to the motion and I do not expect Judge Nelson will seriously consider granting it. Florida’s Sunshine Law is an impressive barrier to a gag order. I predict she will deliver a sternly worded rebuke to defense counsel and we shall see what we shall see.

Judge Nelson also will be hearing argument concerning the defense request to subpoena Trayvon Martin’s middle school and high school records. The State objects to the request on the grounds that the information in the records, whether good or bad, is protected from disclosure by privacy statutes and it would be irrelevant and inadmissible at trial. Prosecutor Bernie de la Rionda called it a “fishing expedition.”

As I have said before, I believe the rules of evidence permit the defense to introduce evidence of a pertinent character trait in support of Zimmerman’s claim that Martin was the aggressor. For example, if Trayvon Martin was known to be an aggressive bully who started fights, the defense would be permitted to bring that out at trial. Specific acts of misconduct would not be admissible, however. The defense would be limited to introducing the evidence as a character trait. Assuming such evidence exists, which I doubt, it might be in the school records. Therefore, I believe the defense has a legitimate reason to want to review the records.

The problem is that the defense may post Martin’s records on its website, regardless whether they contain any reference to misconduct of any kind, whether admissible or not. The State already did that with George Zimmerman’s school records and has apologized for doing so, claiming it was a clerical mistake. Now it seeks to prevent the defense from administering a dose of what’s good for the goose is good for the gander.

There is a solution to this sort of problem and I have previously recommended it. It’s called in camera review. No, it does not involve a camera. In camera review is a legal term that means in chambers. That is, the school records would be filed under seal and Judge Nelson would review them in her chambers and decide whether they contain evidence the defense has a right to review. She discloses it to both sides, if they do. Presumably, she also would order both sides not to publicize the records and might even threaten to hold them in contempt of court, if they were to violate the order.

As I said, I doubt the records contain the information that the defense has a legitimate reason to seek, so this dispute will likely be more like a proverbial tempest in a teapot. If there is any substance to it, there is a solution to deal with the records and protect privacy that has worked in the past.

The State also wants Judge Nelson to order the defense to file its requests for subpoenas in the future under seal so that it cannot publicize them on its website before submitting them for the court’s approval. This argument is part of the prosecution’s strategy to stop the defense from trying its case in the Court of Public Opinion.

This is another issue that Judge Nelson can handle with a stern warning and threat to use her contempt powers. I predict she will do so rather than establishing a special rule for O’Mara, as opposed to all other defense counsel, when seeking court approval for subpoenas.

The prosecution also is seeking George Zimmerman’s medical records at the clinic where he sought a permission-to-return-to-work authorization the day after the shooting. The defense objects on privacy grounds. I think the defense likely waived doctor-patient privilege and privacy concerns when it released a portion of his records and has intimated that his ADHD condition might explain some of his inconsistencies.

Finally, there is an interesting issue about the discoverability of Trayvon Martin’s social media accounts (Facebook and Twitter). A lawyer representing Facebook has refused to comply with the subpoena.

Once again, here’s Frances Robles,

On Monday, Facebook lawyers sent a letter to O’Mara vowing to fight the subpoena. Martin’s social-media account, Facebook attorney Furqan Mohammed said, is not only irrelevant to the case, but by law cannot be released. Mohammed said federal law protects the account information, and added that arguing the issue would have to be done in a California court.

“We think the attorneys for Facebook are essentially saying the same thing we have been saying all along: Trayvon’s Facebook and social media are completely irrelevant,” said Benjamin Crump, an attorney for Martin’s family. “All of these issues are distractions that take the focus off George Zimmerman.”