At the hearing to revoke bond on June 1, 2012, Judge Kenneth Lester said he would issue a written order. Yesterday, he issued his order, which you can read here.
Interestingly, he writes for the first time that the state’s evidence is “strong.” The state chose not to present evidence on the facts of the case at the April 20 bond hearing, relying instead on its affidavit. The only testimony at the hearing on the facts of the case came from the state investigator, called by the defense, who acknowledged weaknesses in the state’s case. The state’s affidavit of probable cause, which as has been endlessly discussed, was a one-sided portrayal with factual inaccuracies and no mention defendant’s claim of self-defense. It didn’t contain evidence of the elements of second degree murder.
Bail hearings in Florida in cases charging life felonies are called Arthur hearings. Florida statutes,rules and case law provide that the accused has a right to bail unless the state establishes at the hearing that “the proof of guilt is evident and the presumption great.” If the state fails to meet its burden, the judge must set bail. If the state meets is burden, the judge still has discretion (as opposed to the duty) to grant bail.
Judge Lester seems to be making a finding now that he didn’t make at the April 20 hearing — that the state met its burden under the Arthur standard of establishing that the proof of guilt is evident and the presumption great. Judge Lester writes:
While the Court would have been authorized under State v. Arthur, 390 So 2d 717 (Fla. 1980), to keep the defendant in custody without granting a bond, the Court exercised its discretion and set what was believed to be a reasonable bond.
Judge Lester made no such finding in April (you can watch the video of closing arguments and his ruling here), and the State never presented evidence other than its affidavit to meet that burden. The state said at the hearing it was not going to present evidence and try the case at the bond hearing. Judge Lester never said the state met its burden, he said the defendant’s motion for bond was well-taken. He also never issued a written order after the April 20 bond hearing finding the state met its burden or detailing any other findings. Yesterday’s order, on his June 1 ruling revoking bond is the first written order addressing his findings at the April hearing.
Since a judge only has discretion under the pre-trial release statute to deny bond in a life felony case when the state has met its burden, and Judge Lester now says he granted bail in April as a matter of discretion, he is saying for the first time that the state met its burden in April. How can he say that now when he didn’t say it then?
Here’s a summary of the law on bail and life felonies:
Where the evidentiary standard concerning proof of guilt is not met, however, an accused is entitled to bail as a matter of right in the same manner as in other cases. Thus, in these cases, the following determinations must be made: whether the offense is one which will invoke the limitation upon pre-trial release; if so, whether the standard concerning proof of guilt has been properly met; and if not, whether pre-trial bail should be granted in the discretion of the court.
Judge Lester’s order yesterday also shows the importance of the state being honest and not deceiving the court in its probable cause affidavit. The affidavit can be considered at the Arthur hearing as evidence to support a finding the proof of guilt is evident and the presumption is great on a life felony, which makes bond discretionary as opposed to a matter of right.
Case law in Florida since the 1950’s has held that the state is unlikely to be able to meet such a burden in homicide cases where self-defense is raised. An accused’s version of the manner by which a homicide occurred (such as self-defense) is generally accepted for the purpose of determining whether the proof of his guilt was evident or the presumption great. See, Florida Criminal Practice and Procedure 3.5 and cases like State ex Rel. Freeman v. Kelly, 86 So.2d 166 (1956), which cites an earlier case holding:
“Defendant’s version of the homicide can not be ignored where there is an absence of other evidence legally sufficient to contradict his explanation. Appellant and deceased were the only witnesses to the homicide and the tenor of appellant’s evidence is that she shot in self-defense.”
In Perry v. State, the court ruled:
[W]here the state’s evidence, although not insufficient to convict for a capital or life offense, is arguably impeached in substantial respects by other evidence or is rendered doubtful by substantial contradictions and discrepancies in the state’s case, the proof is not stronger than beyond a reasonable doubt and, accordingly, the accused is entitled to pretrial bail as a matter of right for such offense.
The affidavit the state submitted, which was relied on by Judge Lester on April 20, failed to alert the court that the state had physical evidence and witness statements supporting Defendant’s claim of self-defense. It didn’t even apprise the court self-defense was an issue. Had it advised the court in its affidavit of these things, even stating its belief was that the self-defense evidence was not compelling enough to defeat probable cause, the state of facts would be in dispute and there could be no finding the proof of guilt was evident and the presumption strong — unless there was evidence that defendant’s claim was completely incredible. The state presented no such evidence in April. So there was no basis for denying pre-trial release and the Court had to grant it, it was not discretionary.
Curt:
I think you will want to read this too:
Perjury charge against Shellie Zimmerman raises more questions of prosecutorial overreaching (Update: Prosecution misleadingly edited transcript), by William A. Jacobson Wednesday, June 13, 2012 at 12:20pm
Akin to “Criminal Justice” in a Third World kleptocracy perhaps?
Do we have a rouge prosecutor in this Angela Corey?
It seems the “read more” link is not active, so if anyone wants to continue to read Jeralyn’s continued article at her liberal Talk Left website, here’s the link.
Odd how some issues create coalitions of strange bedfellows, eh?
Mike, Bill’s analysis is pretty thin to a reasonable mind, and he admittedly says so. But then, as he notes, “thin” is often the defendant’s defense, and the parsing of words and intent is the stuff that defense attorneys rely upon to serve their clientele. This “it depends upon what the meaning of ‘is’… is” strategy works well – whether in the media court of opinion, as we’ve seen in history for an American POTUS, or in a court of law.
Certainly a reasonable human would understand what the line of questioning was, outside of playing parsing word games. Questioning what is meant by major assets, financial means or reasonably liquidate” is dancing on the line of sanity, but it is how most defense cases are structured. Considering that the Zimmermans were documented, shuffling significant sums of money to multiple accounts while he was in the holding tank, I think its quite clear that both of them knew they had access to more than both of them were wishing to let on to the courts. This is something even O’Mara does not dispute as GZ’s attorney. Wise on his part since it’s much easier to do damage control then attempt to defend the indefensible, creating more bad blood that will not do his client any favors.
That said, I wouldn’t worry too much about Ms. Zimmerman. A defense attorney is likely to play the same meaning of is defense on her behalf, and it’s probably going to be successful. However the toughest one to combat is the very specific question and answer in the hearing testimony which your own link notes in it’s update about the omitted Q/A:
Please note that the brother in law comes into play only when asking for a current balance. But while Jacobson focuses more upon the actual omission in the transcript about the brother in law as a non existent smoking gun, it’s hard to argue against the *very* specific question that followed – “Do you have any estimate as to how much money has already been obtained or collected?
While Ms. Zimmerman may not have an up to date, to the penny amount (the previous question where the brother in law was pertinent), she most certainly knew about transfers they had done – even had the brother in law been instrumental in facilitating them – simply because the Zimmerman’s discussions about those very transfers were caught on phone recordings. I dare say that had O’Mara been aware of those jail call recordings, and the money they were dealing with at the website, he would have been johnny on the spot not to advise her to be so vague for such a direct question. The Zimmerman’s need to learn to trust and rely on their legal counsel’s advice… and O’Mara cannot effectively function on his behalf when they don’t tell him what’s going on.
As for a “rouge” – I assume you meant “rogue”? – prosecutor. It’s rather ironic when conservatives get upset when perjury charges are not filed (Teflon Bill Clinton), but then get upset when they are (Shellie Zimmerman). I’m sort of an equal justice person, myself. I try not to consider whether I personally like an individual (based on media fodder) when our judicial system is at work. Heaven knows I don’t like the Jonathan Lowe ruling. I have my beefs with some SCOTUS rulings. But in the end, I have to respect that our system works more times than not.
So in this case, just like I don’t think Clinton deserved a pass on his perjury, if Ms. Zimmerman is guilty, I don’t think she is above our laws either. Just like her husband, our courts will decide her innocence of guilt of that charge… as it should be. But I’m certainly not going to lay in to our judicial system, bringing a charge they think is warranted.
@MataHarley:
If you are talkin’ about me 😉 Well …
To this day I hold an active membership card in the union local I helped found and organize. I’m a former radical leftist and now a Neo-con. We American liberals, whether on left-wing liberals or right-wing liberals, tend to speak up when it appears that someone who might well be innocent is being railroaded. Fresh in my memory is a friend, who last year, was railroaded by a politically powerful and ambitious prosecutor who manufactured evidence to charge and prosecute my friend. My union alone came to my friend’s defense and got his name cleared of all charges. Angela Corey however reminds me of another ruthless ambitious abusive local prosecutor with an eye on higher level state-wide office. A prosecutor who some years ago destroyed a working class family so he could advance to state-wide office. In the end three family members were dead. The widow and mother of the prosecutor’s victims was left alone with one remaining emotionally damage child and no avenue for recourse. The prosecutor? He’s now well positioned to run for governor.
Hi Mata,
Regarding alleged Clinton perjury:
I don’t know if you watched the PBS biopic “Clinton” :
http://www.pbs.org/about/news/archive/2011/clinton-full-rls/
They did an interview with the opposing lawyer who questioned Clinton during his famous 4 hour deposition. During the deposition, the lawyer first read Clinton a very long, detailed definition of the word “s-x,” which covered just about every form of “s-x,” save for that actually engaged in by the pair in question. So, using that definition (and you can actually see the relief on Clinton’s face, after the definition is read, in the actual video of the deposition, shown in the biopic), Clinton answers “no” (i.e. that they hadn’t engaged in s-x, according to that definition). The lawyer (in the biopic) laments that he gave Clinton the wiggle room to avoid perjury. Conclusion: Clinton lawyered his way out of it, but didn’t perjure himself. n.b. This is also the occasion where Clinton, in response to another question, says “it depends on what the meaning of ‘is’ is.”
– Larry Weisenthal/Huntington Beach CA
Can’t disagree with that, Larry. The skill of defense is eliciting, recognizing and exploiting the vague… aka what the meaning of ‘is’… is in order to establish the required amount of doubt that will benefit their client. Thus the reason that the burden is on the prosecution to prove anything, beyond all doubt, and put the ball into the defendant’s court.
Sometimes it works, and sometimes it doesn’t, depending on the jury and how liberal they wish to be with common sense. And I wouldn’t trade that system for any in the world.
@MataHarley: Thanks Mata….fixed, don’t want to be accused of plagiarism again in the MW section
LOL! I just can’t imagine that plagiarizing Talk Left, of all places, would be one of your first choices anyway, Curt.
LOL…Nope, wouldn’t be my first choice
@Mike O’Malley… :0). Of course you know I’m not talking about you. But I think the times must be strange when I find a MW post from Talk Left… not much better than HuffPo, FireDogLake or DailyKOs… on FA. But criminal lawyers/bloggers/pundits come in all different political stripes, and varying degrees in between.
George Zimmerman is not the first time conservatives and liberals alike find themselves split on opinions. The same happened with the Cordoba House/Ground Zero mosque. Division is still alive and well even when it comes to the Patriot Act. And that’s just scratching the surface.
As far as “railroaded”… well, that stuff, or the perception of it, goes on everyday. I sure as heck can’t be getting riled up about every charge prosecutors bring all over the nation, and making personal calls as to whether it’s substantial enough to meet the standards. And I most definitely am not going to be assaulting the system, which allows DAs to do just that. Everyone gets their day in court. Most of the time, it works. Occasionally doesn’t. Nature of the beast. But it’s still the best system around.
But I do have to wonder why JeraLyn Merritt would ponder what the judge knew at the end of May that he didn’t know at the original April hearing. As a criminal defense lawyer, you would think that she would know the case files are sent to the judges chambers prior to hearings, and that he would read them. Be a travesty of justice if he didn’t. And that case file got a lot fatter with the May 15th doc dump, which is only half of what they say they have.
Apparently the Judge’s viewpoint on what he read, feeling the evidence was strong for 2nd degree murder, differs from others. Nothing unusual about that. Lawyers and judges form different opinions all the time. But the only ones who will have any impact on the judicial process are those in the courtroom (and their supporting staff), and the judge on the bench. Everyone else is just a talking head.
BTW, another doc dump showed that Lester will not seal the witnesses names, and GZ’s statements will also be made public and admissible as evidence. An order that I think both the State and O’Mara are not thrilled with, each for their own respective reasons. They’ve got 15 days to comply with the Judge’s order. So there may be a lull before the next round of spittle and venom start flying. I don’t imagine a tone much changed from what it is now.
As for Ms. Zimmerman, I’m sure she will have counsel. Hopefully she’ll be upfront with all disclosures and listen to them right out of the gate. Heaven knows had she and her hubby done that from the beginning, she wouldn’t even be in this pickle. And I imagine O’Mara, who says he didn’t know about the website’s existence at that time – and most definitely not the amount of funds running thru there until after the hearing – must be pulling his hair out in frustration at the moment.
@MataHarley:
By the grace of God I’m not a lawyer but I remember the first day of my first course in commercial law. My instructor was an Irish American lawyer with a practice in the mean streets of a crime ridden North-Eastern inner city. He was pissed. He explained to the class that he had just got a black American workman cleared of weapons charges. The workman, in his 40s, had been a hunter since his childhood in the South. The workman had no prior criminal record. One day some months earlier a local policeman observed that workman putting three rifles into the trunk of his car. The workman was packing his car with his guns for a hunting trip that day. The workman was arrested. The workman lost his job. The workman refused to plea bargain. The workman went on trial and was exonerated of all charges because he had, among things, valid permits for each hunting rifle. Why was my professor angry? Why? Because his client had been unfairly subjected to risk of imprisonment and suffered substantially financial loss relative to his economic position. My Professor explained that the workman in his view should never have been arrested and gone to trial in the first place. My Professor then stated the obvious: in-substance the local cop had
willfullyimposed upon this workman a substantial de-facto fine in part in the form of the legal fees for defense counsel.Heaven knows if had she and her hubby had more time for more thorough initial intake interviews with O’Mara neither of them would be in this pickle.
.
I don’t think you have actually addressed Prof. Jacobson’s point, Mata. With a bit more time I’d like to re-read our exchange and perhaps ask of you Prof. Jacobson’s question:
I’ve already said it above. But I’m happy to repeat it…
That single question, and that distinct denial, has been proven to be demonstrably false by their jailhouse phone conversations, and their documented shuffling around of cash to multiple accounts. Both knew that they were dealing with substantial amounts, altho that’s not what was asked. The number was irrelevant. The question was an estimate of *any* amount of money that had been obtained or collected. I certainly don’t fault them for not having the current, up to the minute balance. But that question was the moment that Ms. Z should have disclosed.
That is a specific false statement. I have no doubt that any defense attorney for Ms. Zimmerman will use the explanation that she was confused, fearful and distrustful… just as O’Mara has done for GZ. That’s their job. But there is no way, in light of the recorded conversations, that you can look at that single question and answer and come away with the notion that it wasn’t a blatant falsehood. Aye has provided the additional hedging of the truth above. But as defense attorneys will tell you, they can parse the words saying a clients understanding of “reasonable liquidation”, “financial means” and “major assets” is subjective. However you cannot explain away that single question and single response. Since that is a known falsehood, the other stuff mentioned by Aye is just garnish for the main course of perjury charges.
BTW, the infallible legal beagles wonder why the State didn’t make a big deal of it then. Not sure why the sequence of events eludes many of such illustrious clout, but until Ms. Zimmerman took the stand, they would have no idea she would not disclose the truth under oath. The second reality is the State didn’t know the amount of cash involved either. Even if they had listened to the jail call recordings prior to the hearing, the “code”, as some call it, used doesn’t reveal amounts. It was not until after the bail hearing, and the word got out in the media about how much cash the Zimmerman’s raised, that the eyebrows were raised… both the State’s and O’Mara’s as well.
O’Mara has been GZ’s legal counsel since April 11th. The hearing was April 20th. There was nine days for O’Mara and the Zimmerman’s to do exactly that. Whether that happened inadequately, or didn’t happen at all, I’m not sure where you want to place the responsibility. Zimmerman certainly could fire O’Mara if he felt he wasn’t involved, and I can’t imagine O’Mara never speaking with his client – even by phone – until the bond hearing. Zimmerman would never be without legal counsel because the State would appoint one for no charge. Being as GZ hired a private representative, I’d also have to assume that one of the first conversations would have to do with finances, and the ability to compensate O’Mara. The discussion of legal compensation is exactly where the disclosure of the website and fundraising, who had the cash and where it was, as well as any amounts to that date, should have been disclosed.
INRE the story by your Prof… there’s no doubt that that sometimes people are detained or charged when they are innocent. But as I said, everyone gets their day in court. In the specific example your Prof gave, how would he know they were permitted weapons, or that he was going on a hunting trip? Was the LEO profiling and did the accused believe he was racially profiled? In which case he could have sued the LEO. You’re never going to have a perfect track record that all charges are predetermined as valid and factual. And LEO and prosecutor need only have sufficient probable cause, and there’s a process that even scrutinizes that. Is it perfect and 100% on the money? Nope… but a darn site better than other countries.
@Mike O’Malley:
Fair enough.
Here is a portion of the transcript from the bond hearing (emphasis added by me):
And here’s a media account of the audio taped jailhouse phone conversations:
In short, Mrs. Z lied about a) the existence of the fundraising assets and b) her knowledge regarding the amount of those fundraising assets. She clearly told her hubby they had a total of “Um, like $155.” She then told the Court she didn’t know (and couldn’t even estimate).
Professor Jacobson (and Jerlyn at TalkLeft) don’t address the audio taped phone conversations in their analysis. Nor do they address the documented actions in which Mrs. Z moved money about from one account to another, always in multiple increments of less than $10K, back and forth, over and over, stashed in a safe deposit box, redeposited as detailed in the capias.
When the audio tape transcripts and the money maneuvering details are laid out side by side with the bond hearing testimony there’s no denying the well documented trail of deception that Mrs. Z traveled.
Here is a link to the capias. Take time to read the whole thing.
It’s damning for the missus.
“But prosecutors say that bank records show Shellie Zimmerman stashed cash in a safety deposit box and transferred nearly $75,000 from her husband’s account into hers.”
Ok, being familiar with safety deposit boxes, and the process by which you can request access to those boxes, since any addition, or removal, is done in private, how does the bank have a record of the contents of the box? Was Shellie Zimmerman videotaped “stashing” cash into their personal safety deposit box? Was there a bank attendant standing by her when she did this alledged “stashing?” How much cash is she accused to putting into a personal safety deposit box? $50,000? $5,000? $50?
And how was she able to transfer money from her husband’s account to hers without his writting a check for her to deposit or her signature being on the account card giving her access to his account? Where are the copies of the bank statements that would show any and all transactions?
Where is the documentation that backs up the persecution team’s allegations?
I live in the Sanford area. At this point no trial is needed, the press have already convicted GZ. Innocent until proven guilty is out of vogue now.
@MataHarley:
I disagree. And so it would seems does Prof. Jacobson.
From the information I’ve seen Shellie Zimmerman might very well have NOT been in the position to provide an approximate calculation of something. Why? Because her brother-in-law might not have given her such an estimate. He might well have placed a sum of cash in George Zimmerman’s account and retained the bulk of the proceeds in his custody elsewhere. From the information I’ve seen Shellie Zimmerman would likely have been in the position to provide a number which, by accident, might have been accurate or might have been a misleading part of a larger whole: a misleading low end number.
Like Angela Corey you have selectively edited the transcript. Let’s review a larger quote:
Do you Mata doubt that those two highlighted statement are not empiricallyfactual?
Let’s make a reasonable hypothetical modification to that exchange to perhaps thinks will be more clear:
Q. And you mentioned also, in terms of the ability of your husband to make a bond amount, that you all had no money, is that correct?
A. To my knowledge, that is correct.
Q: Were you aware of the website that Mr. Zimmerman’s prior counsel created on his behalf?
A: I’m aware of that website.
Q: How much money was collected through that website and held in trust right now? How much money as a result of that website was —
A: Currently, I do not know.
Q: Who would know that?
A: That would be the accountant for the trust, Mr. Alwin Ernst.
Q: And is he — I know he’s not in the same room as you, but is the trust accountant, Mr. Ernst, available so we can speak to him, too, or the Court can inquire through the State or the Defense?
A: I’m sure that we could probably get the Mr. Ernst on the phone right now. He should be able to give you an accurate estimate.
Q: Okay. So Mr. Ernst is not there now.
A: No, he is not, sir.
Q: OK, but do you have any estimate as to how much money has already been obtained or collected?
A: I do not.
As you say, would not everyone in such an exchange have an understanding that a substantial sum could have been collected through the website? And how misleading could Mrs. Zimmerman be in that situation if the prosecutor had called our Mr. Ernst be her behest and obtained a reliable accounting for website collections and disbursements directly from him?
As Prof. Jacobson says:
Prof Jacobson cites Florida case law on perjury as follows:
BTW: I agree with Prof. Jacobson in that I too “understand why the Judge feels he was deceived”.
Then perhaps some of the information you haven’t seen is SZ’s Capias Bench Warrant of PC for Perjury. Aye has provided the link here multiple times.
Since an “approximate calculation of something” would include the $74,000 that she clearly knew about, Ms. Z could have avoided all appearances of perjury had she given the “estimate” of funds that she handled.
We’ve been thru this already, Mike. The prior discussions about the brother in law were related only to the question about the current balance of funds. The ensuing question had nothing to do with the brother in law, and directly stated if SZ had any “estimate” of funds “obtained or collected”. Ms. Z had both obtain and collected at least $74,000.
And as I said, the capias references the full transcript pages, which generally means they are included with the capias an an exhibit. And no doubt already lived in the case file.
Ms Z is being charged with perjury because she did not disclose funds that she knew they had, and actually was responsible for moving around. So what is “empirically factual” is that the brother in law had nothing to do with the question as to whether she, herself, had any estimate of the funds… of which it is documented that she knew about at least $74,000 of it.
Again with the talking heads…. As I said, the only opinions that are relevant are those of the State, the defense team, the Judge and the jury that has yet to be picked. And in this case, both the State and the Judge disagree with Jacobson.
@MataHarley:
Nope, I saw and read it. It was from the bench warrant I learned about the co-mingling of funds.
Apparently Ms Z is being charged with perjury because the prosecutor has over-charged her as she did with her husband.
So what? Show us where Mrs. Zimmerman knew of how “much money is in that website right now? (the time of her testimony). Show us where Mrs. Zimmerman knew “how much money was” collected as “a result of that website”? Telling us that she knew of least $74,000 WILL NOT DO. Unless you can show us that as of the actual time of her testimony the amounts “in the website” and the amounts collected by the website were $74,000 (or an amount substantially the same as $74,000) and that she knew those amounts in the website and collected were $74,000 etc., you have failed to establish the necessary empirical facts to support a charge of perjury. There is no doubt in my mind that Mrs. Zimmerman was being foolishly evasive. You however have not demonstrated that she met the factual conditions necessary for a perjury charge. Acting like an evasive knucklehead before the court was S-T-U-P-I-D. However unless the factual conditions for perjury were met, and from your response it would appear they have not been met, then Mrs. Zimmerman should not have been so charge.
Moreover, the actual questions posed to Mrs. Zimmerman were defective if their objective was to establish factually accurate testimony and information upon which resolve the State’s issues regarding bail?
After all what kind of question is “How much money is in that website right now?” Your $74,000 in cash wasn’t in the “website”. It was in bank accounts! The State’s questions appear to be confusing and inadequate to clearly establish competent factual testimony.
And the State’s final questions about the website are little better. “Q: Do you have any estimate as to how much money has already been obtained or collected?”
The monies obtained and collected substantially exceed your $74,000 figure at the time of Mrs. Zimmerman’s testimony. Demonstrate factually that at the time of her testimony Mrs. Zimmerman knew that the estimated collections were $74,000 and no more.
If you can not sustain your argument in such a factual manner you would seem to be unable to sustain an argument that Angela Corey had not over-charged Mrs. Zimmerman with perjury.
That is your opinion, and apparently not the opinion of the judge…. who had the power to dismiss that had he felt it did not have substantial evidence to support it. So you are talking about two relevant people to the case, in possession of more info than the talking heads, and blog commenters.
You keep returning to this, and for the life of me I can’t figure out why you can’t separate one question and answer from a completely different question and answer. Can’t help ya there… :0)
You know, even Zimmerman’s own attorney isn’t grasping at these long shot straws in his attempt to redeem GZ’s credibility, than heavens. As for the strength of Ms Z’s perjury charge, that will be up to her defense attorney if or when she goes to trial. Personally, I don’t care.