You are browsing the archive for Trayvon Martin.

Trayvon Martin’s parents settle lawsuit against HOA for more than $1 million

10:08 am in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog

Trayvon Martin's parents

Tracy Martin and Sybrina Fulton, parents of the slain teenager Trayvon Martin, recently settled a wrongful death suit.

The Orlando Sentinel is reporting today that Trayvon’s parents, Sybrina Fulton and Tracy Martin, have settled their wrongful death case against the Homeowner’s Association for more than $1 million.

The parties are settling the matter to avoid litigation without admitting responsibility and the terms of the settlement agreement are subject to a non-disclosure agreement:

During an interview in February, Zimmerman’s attorney, Mark O’Mara, said Trayvon’s parents had tried to settle through mediation and the association or its insurer had offered $1 million, but Trayvon’s parents had rejected that amount.

‘It is understood and agreed that the payment made herein is not to be construed as an admission of any liability by or on behalf of the releasing parties; but instead the monies being paid hereunder is consideration for avoiding litigation, the uncertainties stemming from litigation as well as to protect and secure the good name and good will of the released parties,’ the settlement said.

Under the terms of the settlement, Trayvon’s parents, Sybrina Fulton and Tracy Martin, and his estate agreed to set aside their wrongful-death claim and claims for pain and suffering, loss of earnings and expenses.

Trayvon’s parents still intend to sue George Zimmerman separately.

The settlement agreement should not have any effect on the criminal case but it does indicate that the HOA has little confidence in the viability of the GZ’s claim of self-defense.

Of course, we already knew that from our review of the evidence and the defense team’s decision to abandon an immunity hearing.

Congratulations to Sybrina Fulton and Tracy Martin!

This will not bring back Trayvon, but it’s an important achievement and milestone in the long road seeking justice for Trayvon.

H/T to Benjamin Crump: Well done, sir.

Read the rest of this entry →

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: LLM Papa Is Back In The House With Rocket Man

7:06 am in Uncategorized by Masoninblue

Cross Posted From Frederick Leatherman Law Blog

Papa skewers George Zimmerman’s story one more time.

Take a look at this hilarious video:

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.”

Ma’at, Trayvon Martin and the Tale of the Eloquent Peasant

3:37 pm in Uncategorized by Masoninblue

Ancient Egypt

(Photo: Omar A./flickr)

Cross posted from Frederick Leatherman Law Blog

The Tale of the Eloquent Peasant is an Ancient Egyptian story about the relationship of Ma’at to justice. Written sometime during the Middle Kingdom in the 19th century BCE, it relates a story about an incident that occurred during the chaotic First Intermediate Period.

The main character is a farmer from the arid and desolate Wadi Natrum named Khun-Inpu, who loaded up his donkey with most of his barley and set off for an urban marketplace in the Nile River valley where he intended to trade the barley for goods to take back to his wife and children. Along the way, he came to a place where the path narrowed down to the width of a loincloth bordered by a stream on the low side and a wheat field on the high side. A wet cloak lay across the path.

Khun-Inpu stopped when he reached the cloak. A man stepped out of the wheat field and warned him not to move or touch it. He said his name was Nemti-Nakht and he claimed to be the overseer of the wheat field.

Khun-Inpu asked him to remove the cloak so that he could resume his journey, but Nemti-Nakht refused. Khun-Inpu then stepped into the wheat field pulling his donkey behind him intending to go around the cloak and resume his journey. The donkey flattened some wheat, however, and then decided to stop and eat some grain, notwithstanding Khun-Inpu’s entreaties to to the contrary.

Nemti-Nakht started screaming in protest. He accused him of trespassing on his master’s land, destroying part of the crop, and stealing grain to feed the donkey. Then he assaulted Khun-Inpu with a tamarisk and beat him unconscious.

When Khun-Inpu regained consciousness, Nemti-Nakht was nowhere to be seen. Neither was the donkey nor the load of barley.

Khun-Inpu decided to find the owner of the wheat field and plead his case for the return of the donkey and his barley. Upon reaching the next town, he soon discovered that Rensi, son of Meru, owned the land and he found him down by the riverside in the city.

Addressing him with praises according to the customs of the day, Khun-Inpu told him what had happened and respectfully asked for the return of his donkey and the barley. Rensi referred the matter to his judges, but they denied Khun-Inpu’s request because, according to the law, they could not grant it unless he presented witnesses to verify his claim against Nemti-Nakht.

Although he was a mere peasant and outlander lacking a formal education, the judges were greatly impressed by his presentation, which was not at all what they expected from a person from such humble origins. His honesty and passion for justice and his fearless yet polite and earnest way of expressing Ma’at, or good speech would have been exceptional, even if expressed by one of their own. Believing pharaoh might be also be impressed, if he were to hear Khun-Inpu’s literally divine speech, they convinced Rensi to refer the case to the pharaoh for his consideration. In short order the pharaoh agreed to hear the case.
Read the rest of this entry →

Zimmerman: An Evaluation of the Probability of a Plea Bargain

1:43 pm in Uncategorized by Masoninblue

George Zimmerman

(photo: DonkeyHotey/flickr)

Cross posted from Frederick Leatherman Law Blog

I decided to write this article to respond to questions raised by many of you regarding plea bargaining in criminal cases. This is an important subject to cover because approximately 80% of all felony cases are resolved by guilty pleas that resulted from plea bargaining. If every defendant charged with a felony in this country demanded a jury trial, our courts would not be able to process their cases fast enough to keep up with the flow of new cases.

This would produce an epic disaster because trial dates would have to be scheduled so far off in the future that many defendants unable to qualify for pretrial release would serve a substantial amount of their sentences, if not the entire amount, before their trial. The right to a speedy trial would cease to have any meaning and the right to a trial would be so drastically compromised by the inevitable pretrial delay that an exoneration by a jury would have little practical effect. Innocent defendants would suffer incalculable damage to their lives. They eventually would realize that they would likely serve less time if they plead guilty instead of insisting on their right to a jury trial. This practical solution to getting out of jail would effectively eliminate their right to a jury trial, a drastic consequence that no reasonable person would tolerate.

Plea bargaining avoids this doomsday scenario by enabling the courts to process cases in a timely fashion. The reality we have to acknowledge is, whether we like it or hate it, we are stuck with it.

With that background, let us now consider how a plea bargain might resolve Zimmerman’s case.

Zimmerman is charged with second degree murder. He entered a plea of not guilty and claims self-defense.

As the matter now stands, the case will proceed to an immunity hearing and then to a jury trial, assuming the judge denies Zimmerman’s motion for immunity from civil and criminal liability.

If the jury finds him guilty, the Court must sentence him to at least 25 years in prison. The maximum sentence authorized by law is life in prison.

Whether or not he committed the crime, Zimmerman has a constitutional right to plead not guilty and force the prosecution to prove its case.

The only way Zimmerman can change that process is to drop his claim of self-defense and plead guilty as charged. Fortunately for him, he is not under any pressure to plead guilty as might be the case if he were in custody.

Therefore, unless he decides that he cannot win, he has no reason to give up his right to a jury trial. He apparently believes that he cannot lose. I disagree.

In order to make a well informed, intelligent and reasonable decision regarding whether he should go to trial, he should consider whether the risk of conviction and the attendant consequence of serving at least a 25-year prison sentence, is worth taking. One of the most important duties and responsibilities that a lawyer has to his client is to objectively assess that risk and fully inform him about his conclusion and the basis for it.

In my professional opinion, every lawyer should do this for every client, regardless if the client claims innocence, because the lawyer always should allow for the possibility that the client may not have truthful. Although I would never recommend that an innocent client should plead guilty, I believe even the innocent client has a right to know about his chances of winning. For example, I regret to say that I am reasonably certain that some of my innocent clients decided to plead guilty because they had no faith in the ability of the criminal justice system to produce the proper result. For example, I cannot disagree with a Black defendant who, despite claiming innocence, decides to plead guilty to a drug offense to obtain the substantial benefit of a less severe sentence than he would receive after an all white jury rejected his claim that a Caucasian police planted drugs on him. Yes, a criminal defense lawyer deals with racism and ethical ambiguity every day. We do the best we can to assist our clients to navigate through troubled waters and one way to do that is to provide every client with the most accurate and reliable information available.

The prosecution can give Zimmerman a reason to consider pleading guilty by offering to reduce the charge (i.e., charge bargaining) or offering to recommend the lowest possible sentence (i.e., sentence bargaining), if he agrees to plead guilty. The prosecution usually initiates discussions about a possible plea agreement because it is already well informed on the strengths and weaknesses of its case when it charges the defendant with a crime. Defense counsel has to get up to speed before he can knowledgeably and intelligently assess the prosecution’s case.
Read the rest of this entry →