PRINT PAGEZimmerman’s Disaster

Written by Roy Black

Zimmerman’s lawyer, Mark O’Mara, has made his first mistake, and it may be fatal to his client’s defense. George Zimmerman must defend the charges against him with self-defense. This means he must testify in his own defense. It is hard to mount a self-defense claim without the defendant testifying. But now his defense team has committed the worse possible offense– the self-inflicted wound.

In order to re-obtain bail, his lawyer filed a motion for bail. Here is the first sentence of paragraph 10 of the motion:

“Mr. Zimmerman’s failure to advise the Court of the existence of the donated funds at the initial bail hearing was wrong and Mr. Zimmerman accepts responsibility for his part in allowing the Court to be misled as to his true financial circumstances.” Here is the entire motion.

Imagine the cross-examination when he takes the stand:

You lied at your bail hearing?
You lied to the judge sitting right here?
You lied to the man judging whether you should be released?
You lied to get out of jail?
You lied to hide the amount of money you had?
You were under oath at the time?
You volunteered to testify?
Your wife lied as well?
The two of you conspired to lie?
You knew this was an important issue?
Yet you lied anyway?
You are facing a far more important decision today than just bail?
You could spend a lot of time in jail?
Your incentive to lie is far greater?
Now that you have been exposed as a liar no one should trust what you have to say?
Now that you have been exposed as a man who would lie under oath no one should believe you?

If he denies any of these questions he will be impeached with the admission in his motion. He accepts responsibility for misleading the court. Of course this is just a euphemism for lying. The fun with this will be unending. If I were the prosecutor, I would be working out about two hours of questions on this.

Unfortunately these types of choices come up in litigation. Lawyers can’t make short term decisions that destroy the long term decision. Every defendant wants bail and wants his lawyer to do almost anything to get it. But beware what you ask for and how you request it. I predict this motion will come back to haunt Mr. Zimmerman and his defense team. And it was all unnecessary.

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12 Comments to Zimmerman’s Disaster

  1. Geoff Alpert's Gravatar Geoff Alpert
    June 26, 2012 at 6:13 pm | Permalink

    Conscious deception – is that like a lie?

    • Roy Black's Gravatar Roy Black
      June 27, 2012 at 12:12 am | Permalink

      we human beings love euphemisms instead of telling the harsh truth.

  2. June 26, 2012 at 7:07 pm | Permalink

    O’Mara’s demeanor has been too contrite from the begining. i thought he amost knew this new situation was coming and it was for reason that he was not acting differently.

  3. June 26, 2012 at 8:17 pm | Permalink

    I think the cross is a little extreme. He didn’t lie, he let a misstatement about his financial condition go uncorrected. His response at trial will be “I was scared. I had never been through a bond hearing before and the money wasn’t mine, it was being raised for me in a very unusual way. I was unsure what to do or say.” or words to that effect. He can also take credit for self surrendering and authorizing his lawyer to have him take responsibility for his mistake. Not a great situation to be in for sure, but not a fatal flaw. The chatter among judges, lawyers and hoi poloi who have seen the video of Zimmerman re-enacting the shooting has been, surprisingly positive for Zimmerman. Many have commented that after viewing the video that this case is a clear case of self defense and immunity should apply. This case is far from over.

    • Roy Black's Gravatar Roy Black
      June 27, 2012 at 12:17 am | Permalink

      Rumpole: Of course I accept your valient attempt to pave lipstick on this pig but this is an unmitigated disaster. Zimmerman has to testify. He has no choice. How the jury views that testimony will decide the verdict. Once the defendant takes the stand the only decision the jury makes is whether he is a truthful person. Even the whitest of lies can damage credibility. And this is way out of the white range. I also believe he most likely acted in self-defense but this hurts. A good cross-examiner can do serious damage with this. You know that. All we usually ask for a little leverage for cross and you know how much you would like this in a prosecution witness. He better be well prepped how to handle this.

    • Christina Diaz's Gravatar Christina Diaz
      July 7, 2012 at 8:13 am | Permalink

      If Zimmerman’s response at trial is, “I was scared. I had never been through a bond hearing before and didn’t know what to say,” etc., as Mr. Rumpole suggested, isn’t the same true about his trial? Isn’t he scared about the verdict of his trial? Isn’t it true he’s never been through a trial before? Why wouldn’t he be lying on the stand at trial? I agree with Mr. Black that this was a fatal mistake by his attorney. When one has a pending criminal matter of this stature, the accused must walk on egg shells at all times, even more so than had he been on probation! It only gives the prosecution more juice.

  4. Not so fast's Gravatar Not so fast
    June 26, 2012 at 11:05 pm | Permalink

    How would the motion be admissible as impeachment?
    It’s not a verified or sworn motion.
    It only contains representations made by O’Mara, not Zimmerman.

    • Roy Black's Gravatar Roy Black
      June 27, 2012 at 12:25 am | Permalink

      here is rule
      803(18) ADMISSIONS.–A statement that is offered against a party and is:
      (a) The party’s own statement in either an individual or a representative capacity;
      (b) A statement of which the party has manifested an adoption or belief in its truth;
      (c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
      (d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or
      (e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

      This makes it clear that a party is bound by the statements of his agent. There is no clearer agency relationship than attorney-client. The attorney here made the admission on behalf of his client and thereby binds the client to it. There is a wealth of case law on this mainly on the federal side. US v. McKeon from the 2nd circuit is the most well known of the opinions. So Zimmerman is screwed. His only out is to disavow his attorneys statement in the motion. As I recall one defendant in a federal case in the SDNY successfully argued the attorney made the statement without his knowledge and without his consent. Zimmerman better act quickly or he waives that exception.

  5. Not So Fast, Again's Gravatar Not So Fast, Again
    June 27, 2012 at 11:13 am | Permalink

    Nice reply, Roy. I wasn’t aware of the McKeon case, but I read it and see your point.

    But, I thought of something else. Wouldn’t his “misleading” the court at the bond hearing be evidence of a collateral crime (perjury) that would be subject to Williams rule analysis before it could be admitted against him?

    Also, a relevancy objection might keep it out. Because the statement is not an admission related directly to the facts at issue in the case .. rather it’s merely a confession that he lied about his financial status at a hearing within the proceeding.

    An analogy would be: Can you use a misrepresentation made on an affidavit of indigency against a criminal defendant who takes the stand in the case in chief? Is it really relevant to the crime charged?

  6. Roy Black's Gravatar Roy Black
    June 28, 2012 at 1:31 am | Permalink

    If the prosecution is smart and thinking strategically they will not use this in their case-in-chief. It will get lost there. Save it for cross-examination. There is no notice or discovery required for impeachment. And this is an attack on Zimmerman’s credibility and thus always relevant. Let’s see how they handle this.

    June 29, 2012 at 2:37 pm | Permalink

    Mr. Black and Associates,

    If someone were to set up a legal fundraiser site for a defendant being represented by a Public Defender, How should the fund be handle? Should the monies collected and deposited be in a trust name, defendant’s name, relative, or third party name? Thanks for you help.

  8. Wait A Minute's Gravatar Wait A Minute
    August 31, 2012 at 8:24 am | Permalink

    It isn’t true that George had not been thru a bond hearing before either. I am sure that in the 2005 charge there was a bond hearing as well as a hearing that got the charge reduced and the plea in place so he could do the anger management classes or whatever you call that he did in place of going to jail for assaulting an officer.

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