Zimmerman Discovery Hearing on April 27, 2012

I have not been able to find an actual transcript or a video of the proceeding, but one of the commenters over at JustOneMinute watched the hearing live and provided paraphrased updates of what happened in the comments on a recent post. Here is what the commenter had to say:

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Watching it live on Central Florida Channel 13. No gag order.

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de la Rionda wants to talk about the “bond thing”.

Lester is now up to speed on “Media Law”. Has read the applicable codes and procedures. Miami Herald gets a special shout out from Judge Lester.

Only alternative is change of venue, if information prejudices fair trial. blah, blah, blah.

Now asking both defense and prosecution if there is anything else he needs to know in order to release.

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One area in which he is not following media law and that is GZ security. Good for him.

Now what is the best way to handle the media requirement.

Herald lawyer bringing up discovery and that today it comes to the defendant and must be made public. He wants to understand the game plan for releasing discovery. Lester is not going to impose himself on the actions between defense and prosecution. Suggests they all get together and discuss how to handle the release of discovery. But its common between attorneys to ask for a few more days, etc.

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O’Mara is now up. One area he is inquiring is witnesses who have provided statements or want to provide statements. They have cause for concern regarding their participation in the this process. O’Mara wants to be able to analyze statement and the witness prior to releasing. He can’t protect GZ or the witness or vet them if he has to release discovery. Interesting concern that de la Rionda is backing up O’Mara regarding the media scrutiny and security.

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Herald lawyer is now trying to educate judge on media access to the information and witness information. 119.011 Fla. STatue on media discovery re: witness statements. Herald is saying legislature has already set the standard for protecting witness. Judge is concerned about the witness who is out there everyday talking on TV. File motion on case by case basis. State argued what the judge did in Casey Anthony case.

Case by case basis.

State is saying the 911 tape of witness of murder should not have been released. Judge is not being lead to one side or the other.

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O’Mara is bringing up the financial standing of family and the websites raising money. Money then was about $2,700 in both website accounts. Website of The Real GZ. Also false websites and false twitter accounts. He told GZ no more twitter or website. That is when GZ mentioned the paypal account and what to do. Goes into O’Mara office trust account.

GZ has used some of the money for living expense. Point is that at the time GZ was at bond hearing there was $100 to 150 thousand in the paypal account. He was unaware and now the money is in O’Mara control. Not available to GZ. Needs to figure out way to administer. Wanted to make Judge aware of the fact that as of Friday that money was out there. Bernie says he is now aware of the matter from last night. Thinks the court should consider raising bond.

Judge: Wants to see who had control over the accont prior to O”Mara taking control. O’Mara has to give Judge more information. Judge may have authority or maynot have authority. O’Mara noted that the family used $5K from account to raise the $15K for the bond. Wants to do the expication of how the funds were raised and who had authority in-camera to protect the security of the family.

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Information is on its way to O’Mara. Concerned with public disclosure of donor list and security of the donors.

O’Mara is waiving appearence of GZ today.

Bernie is asking he and O’Mara approach the bench. Confidential discussion with Lester. Bernie has a paper or two with him to discuss.

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Well its over. But the judge seems to be more fair and balanced than probably either the State or Defense wants him to be:)

Biggest concern for this Judge is security – of GZ, of witnesses, etc. We’ll see if he is as concerned about the security of donors to the GZ fund.

[END]

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America is Speaking With Its $

The big news last night and this morning was the revelation that George Zimmerman’s web site, therealgeorgezimmerman.com, had raised approximately $204,000 since it was set up in the second week of April. The web site has since been shut down.

Attorneys for the State and Zimmerman were in court again this morning to discuss public release of the discovery in this case. The $200,000 was also on the table. CNN has a story here. I will look for transcripts or video of the proceedings and post a link accordingly. The upshot of the hearing is that Zimmerman’s bond remains unchanged. Zimmerman willingly turned over the amounts in his Paypal accounts to O’Mara, who has placed them in an account that he controls; Zimmerman has no access.

The Martins’ attorney, Crump, is upset (video link) that Zimmerman was raising funds and thinks that Zimmerman should be send back to jail. Despite Crump’s assertions, which this blogger finds troublesome, the Martins themselves were engaged in the same endeavor with their “Justice for Trayvon Martin” campaign. How much has the campaign raised? About one tenth of what Zimmerman has raised–about $26,600 as of this afternoon.

The discrepancy in the amounts, particularly considering that Zimmerman’s web site was only up about 14 days, says volumes about where the silent majority in America really stand on this case.

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Also in the hearing today, according to news sources, the prosecutor requested a gag order for the attorneys involved. The judge declined to even consider the motion. Thank goodness, because that would have left Crump unchecked in the media.

Discovery has also been delayed as the attorneys and the court try to figure out a way to keep the names and addresses of witnesses from out of the public record. The State must turn the witness information and statements over to the defense, but when that happens, those items because public record (the judge declined to seal all of the evidence). Both sides are understandably concerned that both the media, Crump, and others would harass witnesses should their names be made available.

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Finally here is a better link to the Reuters article referenced in yesterday’s post.

Link Soup – Court Docs and More

Tonight we have a little link soup:

The 18th Circuit Court has released a limited number of the court documents related to The State V Zimmerman.  Most of the items are routine, but the file called “Evidence List Redacted” contains Zimmerman’s original arrest report from 2005 for his run-in with alcohol enforcement agents as well as the injunction filed by his ex-finacee in the same year. Unfortunately, it does not contain the paperwork he filed against his ex. Also of some minor interest is the “State’s Response to the Defendant’s Motion to Appear in Civilian Clothing…“, only because it appears to be better researched and more detailed than the Affidavit of Probable Cause.

Reuters has published an article that reveals a little more of George Zimmerman’s history and clarifies the crime spree and fear that was prevalent in the neighborhood before the shooting.

Alan Dershowitz comes out with even stronger language castigating Angela Corey for the Affidavit of Probably Cause filed in support of the murder two charges against George Zimmerman.

You can watch the second half of George Zimmerman’s bail hearing here and read the transcripts–which are incomplete!–here, here, and here. UPDATED: You can watch the entire bond hearing here.

The Mark O’Mara law firm has set up a web site for Zimmerman’s legal case. The donation page is not complete yet because they are still working on getting all of the proper approvals, according to the Zimmerman Legal Case Twitter feed. You can also catch updates on the George Zimmerman Legal Case Facebook page.

Another Good Look at Florida’s Statutes

The Volokh Conspiracy, a blog written mostly by law professors, has a detailed look at Florida’s justified use of force statute–commonly known as the Stand Your GRound law–and whether/how it applies to the George Zimmerman case. My favorite quote is:

Simply put, everyone who has claimed that Florida’s retreat rule affect the legal disposition of the controversy is either misinformed or mendacious.

Read the whole article by clicking on the quote.

As a reminder, I  took a “Closer Look at Florida’s Stand Your Ground Law” and also “Does Stand your GRound Even Apply to George Zimmerman.

Others Weigh in on the Zimmerman Affidavit

Others with far more legal experience than me have started to weigh in on the weaknesses in the State’s Affidavit of Probable Cause against George Zimmerman.

Alan Dershowitz, a Harvard University law professor, thinks the Affidavit is “irresponsible”. From the Mediaite article:

Dershowitz said that the elements that would constitute that crime are non-existent in the affidavit. “It’s not only thin, it’s irresponsible,” said Dershowitz.

Dershowitz went on to strongly criticize Corey’s decision to move forward with the case against Zimmerman. “I think what you have here is an elected public official who made a campaign speech last night for reelection when she gave her presentation and overcharged. This case will not – if the evidence is no stronger than what appears in the probable cause affidavit – this case will result in an acquittal.”

Andrew McCarthy, writing for The National Review, says:

I’m inclined, instead, to agree with commentators ranging from former Reagan Justice Department official Mark Levin to Harvard’s Alan Dershowitz that the affidavit is stunningly weak — “unethical,” as Prof. Dershowitz puts it. In fact, I go further (which, after nearly 20 years of writing and supervising the writing of complaint affidavits, I think I’m qualified to do). This affidavit is not law, it is agitprop:…

Florida trial lawyer Richard Hornsby who has won 15 “stand your ground” cases talked to CBS news about the case:

Hornsby told CBS News he thinks Corey’s affidavit is more significant for what it leaves out than for what it includes.

“The moment George Zimmerman fired that shot is the key question in this entire case,” Hornsby said. “Did he reasonably believe he had to fire that shot to defend himself? And the fact (Corey) completely left that out, begs the question, does she not have any evidence to refute his version of the events?”

Hornsby also has a post on his blog that does a good job of breaking down Florida’s justifiable use of force statute and how it would apply to Zimmerman’s case. He is also quoted in an article in the Orlando Sentinel as saying that, ” the charge looks like an attempt to ‘appease the public’.”

I’ll post additional links as I find them.

Problems With Zimmerman’s Affidavit of Probable Cause

I downloaded the Affidavit of Probable Cause for George Zimmerman and read it with some interest. Several things are clear from this document:

1. No new evidence is mentioned. Pretty much everything referenced is stories and “facts” that have already made it into the media.

2. The State Attorney cherry-picked the “facts” and witness statements (as we know about them) and included only those that reflected badly on Zimmerman’s actions–even when those statements were contradicted by other facts and other statements. In other words, the least credible “witness” statements were used to put together this story. For example, the Affidavit includes statements from Martin’s girlfriend that were taken weeks after the incident as well as takes Martin’s mother’s word that the calls for help were from her son despite at least one impartial eye-witness whose statement directly contradicts that.

3. The Affidavit contains errors of fact. Specifically:

  • The Affidavit states that “The police dispatcher informed Zimmerman…to wait for the officer”. This is factually not true. The dispatcher asked Zimmerman if he wanted to meet the officer, and he said yes. This is directly from the 911 call and NOT  subjective.
  • The Affadavit says that “When the police dispatcher realized that Zimmerman was pursuing Martin, he instructed Zimmerman not to do that…”. This is factually not true. We’ve all heard the recording, and the dispatcher clearly only says, “We don’t need you to do that.” That is not an direct instruction to stop.
  • The Affidavit continues, in the same sentence, to state that “and that the responding officer would meet him.” This is factually not true. See the first bullet point under this item.

4. The Affidavit draws conclusions from facts rather than presenting facts; some of those conclusions are unsupportable. For instance:

  • The Affidavit states “Zimmerman…assumed Martin was a criminal.” Not exactly. Zimmerman thought Martin looked suspicious, which is not the same as saying he assumed that Martin was a criminal. An attorney ought to know the difference. The Affidavit also later states that Zimmerman “didn’t want the person he falsely assumed was going to commit a crime to get away…”
  • The Affidavit also states that Zimmerman continued to follow Martin after the dispatcher said it was not necessary, which has never been proven and is in fact a bone of contention in this case.
  • The Affidavit states that “Zimmerman confronted Martin”. This, too, has yet to be proven.

5. The Affidavit omits important details, such as Zimmerman’s injuries. I don’t know if the Affidavit is required by law to include details that contradict the “story” that the State is presenting, but it seems like Zimmerman’s injuries are relevant to the case. Strange.

Overall, this looks to be a pretty weak case. The most “damning” elements presented in this Affidavit are contradicted by, in my opinion, much more reliable evidence collected at/around the time of the incident.

Manslaughter Vs. Second Degree Murder

The State Attorney Angela Corey has charged George Zimmerman with second degree murder under Florida statute 782.04 (2) . That section of the statute reads:

“The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, …”

Findlaw lists the justifiable use of force as one of several defenses to second degree murder. By contrast, the definition of manslaughter an be found in section 782.07 (1):

“The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, …”

The Chapter 776 referenced in the manslaughter definition is the “Justifiable Use of Force” part of Florida law.

So what does the State have to prove to get a second degree murder conviction? Again, from a blog post at Findlaw:

Florida’s jury instructions (which are based on the Florida statute) spell out three elements that prosecutors must prove to establish second degree murder beyond a reasonable doubt:

  • The victim is deceased,
  • The victim’s death was caused by the defendant’s criminal act, and
  • There was an unlawful killing of the victim “by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.”

The last element — an “imminently dangerous” act that shows a “depraved mind” — is further defined by Florida’s jury instructions. Three elements must be present:

  • A “person of ordinary judgment” would know the act, or series of acts, “is reasonably certain to kill or do serious bodily injury to another”;
  • The act is “done from ill will, hatred, spite, or an evil intent”; and
  • The act is “of such a nature that the act itself indicates an indifference to human life.”

I can’t see how the State can prove this aspect of the alleged crime. This was clearly an act that took place during a heated argument with physical violence. Defending oneself can hardly be seen as done from ill will, hatred, spite or evil intent.

Others agree with me.