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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.

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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.

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Zimmerman: The Case of the Useless Press Conference

12:54 pm 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)

Mark O’Mara raised expectations late last week with an announcement that he would have an important announcement to make Monday morning and would follow it up with a press conference.

Having raised expectations, he effectively dashed them with a bucket of ice cold water early Monday afternoon when he announced that he was filing for a writ of prohibition in the Court of Appeals to get Judge Lester off the case.

Nothing surprising about this continuing foolishness to unseat the judge who dared not praise George Zimmerman and his partner in perjury, Shellie Zimmerman.

The motion to disqualify did not pass the straight-face test and this latest effort does not even merit a yawn.

Why did he do it?

The only reason I can think of is that he’s still trolling for dollars from anyone still willing to contribute money so that George and Shellie can continue to live in the style to which they have become accustomed.

Therefore, we had to endure yet another repetition of the absurd self-defense claim and lives-in-danger nonsense that is growing tiresome and old.

Absolute waste of time.

I said long ago that only a racist would believe that an innocent 17-year-old boy walking home in the rain talking to his girlfriend, after walking to the store to buy his little brother some Skittles and Arizona Iced Tea, would suddenly for no apparent reason go psycho, start speaking in 10-20 year-old ghetto slang and B-movie dialect, attack, and attempt to kill with his bare hands an older menacing man following him who outweighed him by more than 40 pounds and whom he had successfully eluded by running away and hiding.

I’ll say it again.

Anyone who believes George Zimmerman is a racist.

Anyone who contributes money to his continuing dog-and-pony show is a racist and stupid.

Zimmerman: Is Mark O’Mara Clueless as well as Ineffective?

10:22 am in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog.

A crying eye

Do accusations of teenage sexual assault place George Zimmerman at risk of legal charges? (Photo: Boglárka Otti / Flickr)

JD, who comments regularly at my site and who provided the invaluable overlay of a Google Earth Satellite photo onto the SPD Total Station diagram of the objects found at the crime scene, asked the following question:

His lawyer [Mark O'Mara] seems to want to make a point that GZ was still 17 at the time the cousin [W9] claims he was 18 and she 16. If none of this ever happened, what’s the point in making that claim?

Statutory rape statutes establish the age of consent, which is usually 16, and provide exceptions based on the age of the other person. In effect, these exceptions establish a sliding scale of criminal liability. For example, no crime would be committed if a 16-year-old boy had consensual sex with a 15-year-old girl.

I am not familiar with the Florida statutes, but O’Mara appears to have been pointing out that, even if W9′s allegation were true, it would not constitute a crime because she and GZ were too close in age.

That ignores her claim that she never consented to sexual contact and it kind of sounds like an admission that GZ molested her.

Statutory rape statutes eliminate consent as a defense. Since she did not consent, the statutory rape statutes do not apply.

Assuming her allegations are true, we’re looking at rape and indecent liberties type offenses.

Rape requires proof of penetration “however slight,” and includes digital penetration.

Rape is generally classified into three degrees:

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Shellie Zimmerman Arrested and Jailed for Perjury

2:48 pm in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog.

Shellie Zimmerman was arrested today and jailed for perjury, based on her false claim of indigency under oath at the bond hearing at her husband’s bond hearing. She posted a $1,000 bond and was released about an hour later.

The Orlando Sentinel is reporting:

In an affidavit, prosecutors revealed new details about Shellie Zimmerman’s alleged efforts to hide money from the court.

Four days before she testified to having no knowledge of the funds, the affidavit says, Shellie Zimmerman began a series of transfers into her account — totaling $74,000 between April 16 and April 19.

The affidavit says about $47,000 more was transferred from George Zimmerman’s account to his sister’s [account]. Shellie Zimmerman withdrew about $18,000 more cash, prosecutors say.

Prosecutors say the Zimmermans used a rudimentary “code” to discuss the money in recorded jailhouse phone calls — referring to $100,000, for example, as “$100.” At least two of the calls, the state alleges, were made while Shellie Zimmerman and her husband’s sister were at a local credit union making the transactions.

“In my account do I have at least $100?” Zimmerman asked. “No… there’s like $8. $8.60,” she replied.

Zimmerman told his wife to “pay off all the bills” with the money, prosecutors said, including an American Express card and a Sam’s Club card. He also instructed her on how to pay for his bail.

According to the affidavit, after her husband was released on bond days after the bond hearing, she transferred more than $85,000 back into his account. A branch manager at their credit union told prosecutors he knew the couple, and saw Shellie Zimmerman talking to her husband on the phone on April 16.

The manager said he’d helped Shellie Zimmerman transfer control of George Zimmerman’s account, at one point speaking directly to George Zimmerman by phone.

In addition, USA Today is reporting that Judge Lester, who presided over the bond hearing and to whom the case is preassigned filed an order earlier today stating in part,

Lester concluded that Zimmerman’s wife had “testified untruthfully” about her husband’s finances at his initial bond hearing and that Zimmerman had failed to tell the court about one of his two passports.

Lester also noted that the evidence against George Zimmerman “is strong.”

“Most importantly, though, is the fact that he has now demonstrated that he does not properly respect the law or the integrity of the judicial process.”

Devastating news for George Zimmerman.

At this point, I do not believe Mark O’Mara can represent Shellie Zimmerman because, to do so, would create a conflict of interest. His primary duty is to represent and protect George Zimmerman, his client. Needless to say, if George put her up to this, her best interest would be to rat him out and her own lawyer likely would advise her to do so.

Meanwhile, O’Mara may have some potential legal issues to deal with also. How could he not have known about the money in the Paypal account? And what about the second passport that he apparently had in his possession. Did he knowingly participate in the fraud perpetrated by the Zimmermans?

I have a feeling the bond hearing will be stricken due to these recent developments. It is an incredibly dangerous minefield for George and Shellie Zimmerman, for George’s sister, and potentially for Mark O’Mara and even George’s father.

If the hearing goes off as scheduled, expect the prosecution to be beating a drum repeatedly with the following question,

What did you know and when did you know it?

Judge Recuses Herself In Zimmerman Case

2:16 pm in Uncategorized by Masoninblue

As I predicted in my last post, Judge Jessica Recksiedler of the Seminole County Circuit Court in Florida signed an order today granting George Zimmerman’s motion to recuse her from presiding over the Zimmerman case.

Photo by Will Temple.

I did not need a crystal ball or a book of spells to predict the outcome since, by advising counsel that she had a potential conflict of interest about which they might not have been aware without her telling them, she basically invited the motion to recuse and I do not believe she was the least bit offended by the motion.

The potential conflict is that her husband is employed by a criminal defense lawyer, Mark NeJame, who has been a television commentator about the case. Someone in Zimmerman’s family contacted him about representing Zimmerman after Zimmerman fired the two lawyers who were representing him. He declined to take the case, in part because he had expressed opinions about it on television, and he recommended several lawyers, including Mark O’Mara, whom Zimmerman subsequently retained.

I do not believe Judge Recksiedler had an actual conflict of interest, but I would be surprised to discover that she and her husband had not discussed the case, especially after NeJame was contacted about representing Zimmerman before the prosecutor, Angela Corey, charged him with murder second degree.

Judges are supposed to abide by a code of judicial conduct and, in addition to recusing themselves when they have an actual conflict of interest, such as a financial interest in the outcome of a case before them, they are supposed to maintain the appearance of fairness and impartiality, regardless of what they may think about a case, the lawyers, and the litigants. Since there is a possibility that someone might question her impartiality, due to her husband’s connection to NeJame, she decided to disclose it in order to maintain the appearance of fairness.

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