Tag Archives: mark o’mara

Don’t Make Judgment in the Child in Hot Car Case Until the Facts are Known

Justin Harris Mug Shot

Justin Harris Mug Shot

I have been busy and haven’t gotten to update the blog regarding Justin Harris, the man charged with murder for allegedly intentionally leaving his child in a car, who then died from the heat. The facts that have been released so far sound damning: apparently Harris did searches on his computer related to dying from heat, he ignored calls from the child’s day care, and he was sexting with women other than his wife on the day of the incident. He also had life insurance on the child that he is now seeking to collect. However, for as terrible as the facts sound so far, the case is far from proven. Attorney Mark O’Mara, who impressively defended George Zimmerman, filed an Op Ed encouraging people to reserve their judgment. Give it a read, O’Mara is frequently a well-spoken voice of resrevation. http://www.cnn.com/2014/07/01/opinion/omara-hot-car-dad-harris/index.html

Negligence happens, and unless malice or intent can be proven beyond a reasonable doubt, the case is substantially different. Just recently in Southwest Florida, Melissa Smith was acquitted of Aggravated Manslaughter when the jury did not find that her negligence rose to that level of criminality. She was found guilty of a lesser charge of Child Neglect and three counts of Culpable Negligence. She was sentenced to eight months in jail and 5 years of probation.

No Charges Likely in Zimmerman Domestic Dispute

Police were called to a home in Lake Mary yesterday by George Zimmerman’s wife Shellie, in regards to a domestic dispute of some sort. Mrs. Zimmerman, who recently filed for divorce, made numerous allegations including violence by Mr. Zimmerman toward her father, and allegations that he was threatening both of them with a gun. She can be heard on the 911 call saying that he was putting his hand on the gun. Authorities responded, as did the lawyers, and after conducting an investigation, that included a temporary detention of Mr. Zimmerman, police declined to file any charges.

More details have emerged today. According to police, they did not recover a firearm. Apparently, Mrs. Zimmerman then backed off of that statement and changed her story about what happened. Mr. Zimmerman claimed that she and her father started the fight. Due to the conflict in evidence, law enforcement was unable to determine that a crime occurred. I am reluctantly including the USA Today link today for the updates, because the 911 recording posted there is defamatory to Mr. Zimmerman. Keep in mind that Mrs. Zimmerman is a convicted perjurer.

I encouraged people yesterday not to jump to conclusions. Social media blew up with cracks about Mr. Zimmerman, and firearms, when it turns out that there was no gun involved. Thankfully, cooler heads prevailed at the incident, and nobody was hurt. I expect the case report will be forwarded to the State Attorney’s Office for review, but would not expect charges to be picked up against Mr. Zimmerman. Frankly, in light of the statements made by Mrs. Zimmerman, she could be facing charges for giving false information to the police, which would also violate her probation. Mr. Zimmerman does not wish charges to be filed, and it’s unlikely the State will want to pick it up.

George Zimmerman Seeking Up To $300,000 in Costs

George Zimmerman in Court

George Zimmerman in Court

George Zimmerman’s Attorney has indicated that he and his client may seek reimbursement for between $200,000 and $300,000 in costs expended during his defense. It must be noted, because multiple media outlets have been reporting it unclearly, or incorrectly, that this money is not for legal fees. Zimmerman cannot be reimbursed for the money that would go to his attorneys. The money is limited to money for taxable costs expended by any defendant who is found innocent, potentially including a great deal for witness fees. That’s a substantial amount to tack on to the nearly one million that has already been laid out by the State to prosecute the case.

As I said, the legal fees are not included in this request. Mr. O’Mara indicated that neither he, Don West, or the rest of the Defense team have received any money for their work on this case. That’s the best legal value in history, for superb representation from experienced attorneys.

If Zimmerman is sued in civil court, for instance, if the Martin family files a wrongful death claim, he could potentially be reimbursed attorney’s fees for defending that suit, if he can demonstrate that he should have been immune from prosecution. He did not file an immunity motion in the criminal case, but that wouldn’t rule out exercising that rule if he were to be sued. It serves as a deterrent to the filing of such lawsuits.

Issues Mount for Angela Corey, the George Zimmerman Prosecutor

Angela Corey and assistant prosecutor Bernie de la Rionda

Angela Corey and assistant prosecutor Bernie de la Rionda

She’s being criticized all over for losing the prosecution of George Zimmerman for killing Trayvon Martin, and problems continue to mount for prosecutor Angela Corey. We covered the news that she fired the whistleblower employee , Ben Kruibdos, who revealed that she was unlawfully suppressing evidence on this blog a few days ago when the news broke. As I predicted, a whistleblower lawsuit against Ms. Corey’s office has been announced by Mr. Kruibdos’ attorney. In a bit of delicious irony, the attorney Mr. Kruibdos has retained is himself a former employee of Ms. Corey, who resigned last year due to disagreements with the way she ran the office.

Mr. White was subpoenaed to testify at the hearing for sanctions, and it got pretty contentious when he was examined by prosecutor Bernie de la Rionda, his former boss at the SAO. So, basically Angela Corey’s State Attorney’s Office is kind of a shitshow. Defense attorney Don West was called to the stand during that hearing, alleging under oath that they had caught de la Rionda “hiding the information.” The judge reserved ruling on the discovery violations at that time, saying they would be better handled after the trial.

Now that the trial is concluded, the Defense team is pushing for the issue to be revisited. Mark O’Mara went so far as to tell Reuters, “This is not acceptable, and is not going to be tolerated in any case that I’m involved in.” He continued,  “They are a disgrace to my profession.” That’s the kind of harsh rhetoric that is more likely to come from his co-counsel on the case. Mr. O’Mara’s demeanor has consistently been more low-key, but the alleged violations have really riled him up. And rightly so, if the allegations are true, that the State Attorney’s office deliberately suppressed Brady information, that is a serious breach of the public trust and the right of the Defendant to a fair trial. It will be interesting to continue watching the fireworks.

Why Did the Jury Acquit George Zimmerman of Killing Trayvon Martin? #Zimmermantrial

Many people have expressed surprise, disappointment, and even shock for the jury’s acquittal of George Zimmerman this past weekend. The jury found him not guilty for the murder of Trayvon Martin, and not guilty of the lesser included charge of manslaughter. This article is directed to address some of the issues that have been raised by people who cannot reconcile the verdict and answer some of the most frequently asked questions about the case and the verdict. Please read through, and if there is a question that I don’t address, please respectfully share in the comments and I will try to address them as I am available.

How could this happen? Was this jury out of their mind? The state did not have a great case. Keep in mind that the previous prosecutor’s office reviewed the case, and decided not to file charges on it because they did not think there was enough proof to go forward. The early media version of the story was very one-sided, but as more information came out about the case, it was far from clear whether there was criminal liability. Most attorneys who paid attention to the case were not surprised by the verdict, nor were regular readers of this blog.

How can Zimmerman not be guilty when Martin was unarmed and Zimmerman had a gun? The legal equation does turn on whether one party was armed or not. The legal question is whether the Defendant had a reasonable fear of death or great bodily harm. Early media reports about the case pointed out that Martin was shopping for Skittles before the incident; they failed to give important details about the incident. A fight took place, and Zimmerman has several injuries that suggest he was on the losing end of the fight. He had a broken nose and lacerations on the back of his head. That’s the basis for the legal defense of justifiable use of force.

What kind of crazy laws do they have in Florida? What wacky ramifications from the Stand Your Ground caused this? All the talk about Stand Your Ground really clouded the case. While it was discussed early on as a possible defense strategy, the defense did not proceed on a Stand Your Ground immunity theory. The Stand Your Ground law played a role, particularly in the jury instructions that were given. It removed the duty to retreat from the instructions, but did not change the standard for justifiable use of force. On an side note, sometimes the Stand Your Ground law is a good thing. But, it’s important to note that this was not a case of Zimmerman “standing his ground?”

But Zimmerman got out of his car and followed Martin? Didn’t that action lead to Martin’s death? While it was poor judgment for Zimmerman to get out of his car to follow Martin, that action was not criminal. Zimmerman lived in that neighborhood, and has as much right to walk around in that neighborhood as Martin did. There was an intervening act that lead to the death, and the state did not have any evidence that Zimmerman started the fight. In fact, one of the jurors spoke to CNN yesterday, and said that she believed Martin attacked Zimmerman and threw the first punch. But the equation doesn’t stop there. The legal question was whether Zimmerman had a reasonable fear of death or serious bodily harm. It is not legally relevant whether Zimmerman followed the neighborhood watch regulations, especially if he was attacked.

Martin was unarmed, how could it be justifiable to kill him? The fight that precipitated the shooting got significantly more severe. Evidence suggested that Martin threw multiple punches, breaking Zimmerman’s nose. The State tried to argue that Zimmerman was getting the best of Martin at one point, but the evidence did not support that. The evidence indicates that Martin got on top of Zimmerman and continued to beat him. Zimmerman’s story to that effect was supported by an independent eye-witness in the neighborhood, John Good, who came outside prior to calling 911. Zimmerman’s head was split open in multiple places, which supported his claim that Martin bashed his head against the paved sidewalk multiple times. The forensic evidence proved that Martin was on top of Zimmerman when the shot was fired. The juror indicated they were convinced it was Zimmerman screaming for help on the 911 recordings. There was ample evidence to demonstrate that Zimmerman was afraid for his life when he fired the shot.

People are saying that Zimmerman was a racist/vigilante/criminal, shouldn’t that count? There was no evidence to support the allegations of Zimmerman being racist, in spite of what Nancy Grace thinks. Zimmerman had made other calls to 911, which the state produced into evidence, but those calls did not make him sound overzealous. In fact, it proved that he may have had reason to be concerned, as his neighbors had been the victims of multiple break-ins in recent months. He had been arrested once before, but those charges were dropped after Zimmerman entered a diversion program. Zimmerman does not have a criminal conviction, or he would not have had a legal permit to carry the firearm. Prior records are generally not permitted to be introduced in criminal trials as Defendants are presumed innocent; we don’t want prosecutors to make their cases on character assassination. The tables were actually turned in this case, as Martin’s character issues were largely shielded from the jury. Great efforts were made to have the cased proved, or not proved, on the facts.

You’re not trying to say race wasn’t a factor? No, race is obviously a factor, but it is one of many. For instance, there was an allegation that race was a factor in the initial confrontation. However, there was not evidence to support racial profiling. Ironically, Martin made what could be considered a racist comment, calling Zimmerman a “creepy-ass cracker” before the confrontation, according to Martin’s friend. Is it possible the jury was influenced by race? Of course that’s a concern, but there isn’t evidence to show that race was the reason for the verdict. The jury was made up of 6 women, 5 white, and one a minority. Zimmerman is part hispanic, and identifies as such.  They did not acquit Zimmerman because Martin was a young black man. There was ample evidence presented that Zimmerman was being beaten, and that he has a reasonable fear of death or great bodily harm.

Zimmerman’s injuries were not severe, how does that justify shooting someone? This is one of the contentions the prosecutors cited for filing the case after they lost. However, the legal standard is not whether someone had been seriously injured. Rather, the test for justifiable use of force is whether there is a reasonable fear of death or serious bodily injury. The fear must not only be reasonable, it must be imminent, you can’t use force against someone for future harm. The reason the law is written this way, as it was passed down from the common law, is that the use of force is justified to prevent death or serious bodily harm. You don’t have to wait to be mortally wounded to defend yourself, that would be too late. Evidence presented at trial indicated that after knocking Zimmerman down and breaking his nose, Martin slammed his head down so hard that it split open. In order for his injuries to have occurred, Zimmerman’s head must have been slammed against a very hard surface, such as the sidewalk. In the words of Zimmerman’s attorney, Martin armed himself with what he had available, the pavement. If such circumstances were true, a reasonable person would probably feel they were in danger of death or serious bodily injury*. The State did not prove otherwise, and the jury certainly had ample evidence to support a not guilty finding on the law. The juror who spoke yesterday indicated that rereading of the law is what ultimately convinced them to acquit.

Does this mean that a young black man can be shot anywhere? No, very much not. It was only the substantial evidence, both testimonial and forensic, that demonstrated that Martin was beating Zimmerman when Zimmerman fired the shot. While not an element of this case, there was ample evidence to suggest that Martin was the aggressor; that he committed a crime in attacking Zimmerman. Many people are trying to make this case a referendum on race in this country, but the facts suggest otherwise, and Martin was not the wholly innocent party that some have suggested. I doubt many of those pundits followed the case very closely, rather they made up their minds when the movement for Zimmerman’s arrest began. The facts shown in court are favorable to the verdict. This case is certainly a tragedy, and it is a shame that a young man was killed. The conversation on race in this country should continue, and we should keep the families of both Trayvon Martin and George Zimmerman in our prayers.

Is this one of those cases where there was important evidence that the jury didn’t hear. No, it is not. In fact, the jury got a pretty full picture of the evidence in this case. There was no statement by the Defendant that got suppressed, rather the contrary. Zimmerman gave about a half dozen statements and they were played for the jury. The physical evidence did not contradict his statements. The lead investigator found him to be credible. That testimony came in, but was later stricken. There was evidence that the jury didn’t hear that would have been beneficial to his defense. Zimmerman passed a lie detector test the day after the shooting. The jury didn’t see the pictures or text messages that showed Martin had used drugs or was proficient at fighting, and they did not hear that he had been suspended from school or had other legal troubles. This was not a hide the ball case, this was a very informed jury who found him not guilty.

Not guilty isn’t the same thing as innocent. We shouldn’t put too much faith in this jury verdict. This case is different from a lot of cases in that Zimmerman relied on an affirmative defense. That means the burden was actually on the Defense to prove to the jury that he was justified. There was no doubt as to the ID of the shooter, and Zimmerman never denied doing it. He always maintained that he did it in self-defense. The evidence corroborated Zimmerman’s version of the events. The evidence at trial convinced a jury that he was justified. I have seen people compare this verdict to the O.J. Simpson verdict. Frankly, the cases couldn’t have been more different.

Is he going to face federal charges from DOJ? The department of justice has an open investigation into the matter. The Federal Government can only file charges if the crime involved a violation of someone’s civil rights; it’s basically targeted toward hate crimes. It will be difficult for the Feds to prove there was a hate crime when the state could not prove there was a crime by Zimmerman. That doesn’t mean that he cannot be tried, it is an exception to double jeopardy for the Feds to charge him again even after the State tried him. It would be unlikely for them to press charges, because he was acquitted, but politics could drive the decision. The decision of state prosecutors to file was politically motivated, not motivated by facts. Angela Corey said nearly as much in her post-trial comments. As the case progressed, and more facts came out that supported Zimmerman’s defense, I was more and more surprised that the State had chosen to file charges in the first place. The Feds could still file charges if they feel it is appropriate.

So did the prosecutors drop the ball on this case? Some pundits have criticized the State for trial miscues that may have hurt their case. This case was not lost by the trial skills on either side. Rather, the facts did not support a conviction, and even a perfectly presented case would have trouble meeting the burden of proof when so many facts were not in their favor. Mr. Zimmerman did have excellent representation, and Mark O’Mara in particular did a great job of presenting a complicated defense case. I may do a later post detailing some of the errors the State committed in trying the case. And we will definitely follow the case to see if sanctions end up being levied against the State for their discovery violations.

Can Martin’s family sue? They can sue, but it is still difficult case. As I said above, this wasn’t a reasonable doubt- type acquittal. In this case, the Defense actually proved an affirmative defense, which will also be a defense to a civil suit. If the family sues, and they lose, they will be liable for the attorney fees for defending the case, thanks to the Stand Your Ground law. I hope they are well advised of their risks before they file suit.

This summary is my opinion, gleaned from my legal training and following the case as much as possible. I encourage you to review our previous coverage of the #Zimmermantrial as we have done quite a bit about the case. Crimcourts will continue to follow the aftermath of the Zimmerman trial as it progresses in the weeks ahead.

*Zimmerman also claimed that Martin told him he was going to die, covered his mouth at one point, and reached for his gun. If true, Martin was in the process of an attempted murder. This evidence was unrebutted, as Martin was killed. However, there was ample evidence to support the use of reasonable force even you discount the statements of Zimmerman that cannot be verified.

Zimmerman Trial Update

The prosecution finally scored some points the last couple of days* with the testimony of police Investigator Chris Serino. He asked Zimmerman some more pointed questions in his lengthy interviews, and challenged Zimmerman on following Mr. Martin that night. However, the testimony was not all favorable for the State, and the Defense continued to score points. The detective admitted the physical evidence was consistent with Zimmerman’s claim that Martin was on top of him when he shot. And the State continues to stress that Martin was not committing a crime that night, which is ultimately irrelevant to whether Zimmerman was justified in the force he used. At times it seemed like the prosecutor was challenging his own witnesses, which has frequently been the tenor of the State’s case.

Zimmerman with Attorney Mark O'Mara

Zimmerman with Attorney Mark O’Mara

I want to mention how impressed I have been at how defense attorney Mark O’Mara has conducted the defense of this case.  His demeanor with the witnesses must be endearing to the jury. His questions consistently ask for positive responses, so time and time again the State’s witnesses agree with what he says, or at least he conveys that impression. It’s a stark contrast to Mr. De La Rionda, who is very blustery, and has frequently seemed agitated with his own witnesses. Mr. O’Mara is putting on a trial clinic so far this case.

*Ironically, while the State as scored some points, and definitely had a couple of improved days of testimony this week, even this article was titled, “Prosecutor, Police Officer at Odds in Zimmerman Trial”

George Zimmerman’s Murder Trial Started Today

Zimmerman with Attorney Mark O'Mara

Zimmerman with Attorney Mark O’Mara

Jury selection began today in George Zimmerman’s trial for the murder of Trayvon Martin. Jury selection will likely take several weeks, and there is likely to be several weeks in trial after that. Today the potential jurors answered questionnaires, and began individual questioning. This process will continue until the court has 10 panelists: seven jurors and four alternates.

It looks like the Orlando Sentinel is on top of coverage. You can watch live on their website, and they are also live-blogging from the courtroom: http://www.orlandosentinel.com/news/local/trayvon-martin/