Trayvon Martin Killing: What is George Zimmerman’s Best Defense

(Update 6/1/2102: Zimmerman’s bail revoked, back to jail he goes, for lying to the judge about his “indigent” status. Apparently, he had over $135K in the bank. Not good, coming from the son of a judge.)

(Update 5/15/2012: Martin’s autopsy shows injuries (cuts) to his knuckles. Zimmerman’s medical records from a family physician indicate a broken nose and head lacerations.)

Pick the right jury.

And, that’s the challenge for both the prosecution and the defense.

The defense just needs one juror to vote not guilty or undecided. While the prosecution needs all of the jurors to vote guilty, a unanimous verdict.

This case will be a “battle of the facts”.

Did Zimmerman act in self-defense? Was he “attacked” by Trayvon? Did he have a “reasonable belief that use of deadly force was necessary to prevent death or great bodily harm”? What did the 911 callers see or hear? What was the angle of the shot? What were Zimmerman’s injuries? Any blood or gun resin on Zimmerman? And, most importantly, what were the injuries on Trayvon Martin, other than the bullet wound, to support Zimmerman’s claim that he was attacked and that there was a struggle?

Or, did Zimmerman act with a “depraved mind without regard for human life” when he shot Trayvon? Did he act with “ill-will, spite or hatred” (depraved mind) necessary for the prosecution to prove a second degree murder conviction? Was there a racial slur on the 911 call? What were Zimmerman’s statements to the police? Did an ear-witness hear Zimmerman’s words?

And, then, there is “reasonable doubt”, which many jurors struggle to understand and many defense attorneys consider the “Hail Mary”. The defense will remind the jury that each element of second degree murder or manslaughter, a lesser offense, must be proved beyond a reasonable doubt. “If there is reasonable doubt, you must acquit”, the defense may say.

And, will George Zimmerman testify? Will he be sympathetic? Will he connect with the jury? Will the jury identify with him? Will he be believable? Or, will the facts or the forensics (angle of bullet, no fight injuries to Trayvon, etc.) discredit his story?

Yet, if the public’s reaction to date is any indication, picking a fair and impartial jury will be no easy task for either side. But, an experienced trial attorney knows that this case will be won or lost by who they pick as jurors.

Just ask OJ Simpson or Casey Anthony.

Simply my opinion, what say you?


Conrad Murray (Michael Jackson) Trial: Will Conrad Murray Testify?

Martha Stewart didn’t take the stand. OJ Simpson didn’t take the stand. Casey Anthony didn’t take the stand. Will Conrad Murray, the “Doctor in the Room” take the stand? That is the million dollar, or should I say the $150,000 a month, question. It’s a tough decision but one that defense attorneys and defendants consider everyday in courtrooms across the country.

Is it too risky to put Murray on the stand? Absolutely. So many dangerous areas of cross-examination. He didn’t call 911. He didn’t tell the paramedics, the ER doctors or the police that he gave Michael propofol. He had no appropriate life saving equipment in the room. He was paid $150,000 a month. He was talking to his girlfriends and emailing rather than at Michael’s side. Why allow the jury to be reminded of everything he did wrong. And, no doubt, he will likely say other things that could damage his case. If he’s arrogant or controlling, they usually do.

Yet, maybe, Murray is the type of defendant that can turn it all around with his charm, engender sympathy and tell us persuasive facts. After all, he does have patients that love him. But, it seems the facts so far have done him in.

Casey Anthony and OJ Simpson never explained and they walked. But, Murray is no Casey Anthony or OJ Simpson.

Simply, my opinion, what say you?

Casey Anthony & Amanda Knox: Is the Justice System Broken?

Casey Anthony rang the bell. Amanda Knox just rang the bell. And, OJ Simpson definitely rang the bell. Is the justice system broken?

Amanda Knox, a 25-year-old Seattle woman, served 4 years in an Italian prison for a murder the Italian Appeals Court jury just overturned. While Casey Anthony, a 25-year-old Florida woman, who failed to report her 2-year-old daughter Caylee missing for 31 days and repeatedly lied about Caylee’s whereabouts, was acquitted of all charges related to Caylee’s death. Was justice served?

How do we or can we find justice in these two different outcomes? This isn’t simply about two different outcomes in two different countries. It’s about how we deliver justice and now, apparently, it’s a global concern.

Can justice be hijacked when a prosecution is focused on conviction rather than justice? Can justice be contaminated when the forensics are contaminated? Can justice be lost by incompetent investigative police work? And, can justice be derailed by fabricated defenses? If we answer yes to any of these questions, than justice is in peril. The scales of justice need to be rebalanced.

And, importantly, does justice begin and end with a conviction or an acquittal? What about justice for Caylee Anthony? What about justice for Meredith Kercher? Justice requires that we find the how and the why, too.

Maybe, it’s time we answered the bell.

Amanda Knox Appeal: “Foxy-Knoxy” may just be “Lucky-Knoxy”

(Update 1/30/2014: Another twist. On re-trial, the Italian Court just found Amanda guilty of murdering Ms. Kercher. Ms. Knox faces 28 years in an Italian prison if the United States grants her extradition back to Italy. More news to follow.)

On Monday, Amanda Knox “Foxy-Knoxy”, a 25-year-old Seattle woman, convicted in Italy of murdering, Meredith Kercher, her 21-year-old housemate in 2007, may well become “Lucky-Knoxy” if Italy’s Appellate Court overturns her conviction and grants her freedom or even reduces her 26 year sentence.

“Lucky”, not because she hired Casey Anthony’s Jose Baez or OJ Simpson’s Johnnie Cochran. But, because, she was convicted in Italy where the appeal process gives the defendant a new trial, a trial “do-over”, a second trial, if you will. A second chance to prove her innocence. Another chance to prove the prosecution is wrong. Not in the United States. The defendant only gets one trial before an appeal is heard. And, an appeal in the US is based on what happened at the defendant’s trial. For instance, did the defense attorney fall short? Incompetent? Or, prosecutorial misconduct? Or, did the judge fall short? Mis-instruct on the law? Wrong ruling? Or, did the jury fall short? Was the verdict not supported by the evidence? Juror misconduct? It is not a trial. It is a review of the defendant’s trial.

An appeal in the US is based on the “battle of the briefs”, the written arguments filed by the attorneys, with a review of the trial transcript and typically, an appeal hearing where the attorneys argue why the conviction should be overturned and respond to the judges questions. It is a court of review, not a trial court. There is no trial. No jury. No testimony. No new evidence (unless the basis of the appeal). No new Opening Statements. No new Cross Examination. No testing of DNA evidence that wasn’t done at the “first trial”. And, not even a court-appointed panel of forensic experts to re-test the evidence from the “first trial”, which, in Amanda Knox’s case now appears problematic. Apparently, in a retest of  the “DNA” found on the murder weapon, the knife, the “convicting” DNA now appears to be rye bread.

An appeal is the United States is a long, arduous and expensive process in which most defendant’s convictions are not overturned to afford a new trial. And, if a new trial is granted, the trial does not take place in the appeals court, it takes place in the lower court, the trial court. Certainly, we would never see Amanda Knox or any defendant stand before a US appeal court to plead their innocence.

Meredith Kercher’s death is a horrible tragedy. And, Amanda Knox’s guilt or innocence will be decided by the Italian Appellate Court’s jury, but, Ms. Knox simply could be “Lucky Knoxy” because she was convicted in Italy where the appellate process gives her a new trial, which some may say, is a more efficient and just justice system.

Amanda Knox Case: Justice for Victims Trumped by Defendant’s Looks

Is justice for victims trumped by the looks of the defendant?

It’s a curious question but one that I have been asking myself, most recently with the Casey Anthony trial and now, with the Amanda Knox case. Why is there so much commentary on the looks and appearance of Casey Anthony and Amanda Knox?  Is it because we are obsessed with beauty? America’s Top Model. Keeping up with the Kardashians. Recent uptick in plastic surgeries. Brad & Angelina. Or, is it that beauty doesn’t kill or wouldn’t kill.

Absolutely, I appreciate that Casey was fighting for her freedom and Amanda is fighting a conviction but what about the victims? What about Caylee Anthony? What about Meredith Kercher? Yes, Meredith Kercher is her name, the victim in the Knox case. But, how much have we heard about Ms. Kercher? Did you even know her name? She was 21-year-old young woman when she was killed. A university student, had three older siblings, well-liked, had an orange belt in Karate, wrote poetry, full of hugs, and had a penchant for being late.

Who is advocating for the victim? In the courtroom, it’s the prosecutor’s job to advocate for the victim and to tell the victims story. Tell the jury about the victim and they will care. But, outside the courtroom, who is advocating for the victim? Who is telling us about his/her life, the life lost? Is it about getting ratings? Or, do we now require the victims families to put aside their grief and hold press conferences, or hold a sign outside the courtroom, or wear a baseball cap or t-shirt that says “Justice for Caylee” or “Justice for Meredith”? The victims are entitled be heard, too. Who speaks for the victim? the family? the friends? the media? the prosecutor? Who?

Justice is about the victim, too.

Simply my opinion, what say you?

Conrad Murray (Michael Jackson) Trial: What Seeds will they plant in Opening Statements?

What seeds will be planted by the lawyers in the Opening Statements in the Murray/Michael Jackson Trial? Will they plant the seeds of an acquittal or a conviction? What seeds will be planted by the defense to create reasonable doubt? Will they prove everything they say in opening statement? Do first impressions really matter? Does what lawyers say even matter? Well, Casey Anthony’s lawyer Jose Baez argued in closing argument of a downing of Caylee and molestation by George, but never proved it and he got an acquittal. (And, an investigation from the Florida State Bar). I wonder if those were the seeds of reasonable doubt.

What will the Defense do in Opening? Will they plant seeds of Michael as an addict or revive “wacko-jacko”? Not in Judge Pastor’s courtroom, it seems. He won’t let them talk about the 2005 molest case, “This is It” Video, or Michael’s alleged calls to others for drugs or even, Michael’s lifestyle or finances. Judge Pastor is no Judge Perry. It’s not about “The Man in the Mirror”.  It’s about the “Doctor in the Room”, Conrad Murray, and what he did and failed to do on June 25, 2009.

Maybe, the defense will plant the seeds of an accident, a defense. Or, claim that Michael injected himself, bottles of propofol were near his bed. The Defense just needs one juror to vote not guilty. The Prosecution needs all 12 to vote guilty. And, an intent to kill (murder) is not required for involuntary manslaughter. The seeds of the prosecution will likely be a large dose of propofol. No heart-monitoring equipment. Surgery drug for insomnia. Delayed calling of 911. And, who does CPR on a bed?

Even if Michael had said to Dr. Murray, “Don’t stop till you (I) get enough”,  it’s no defense, the prosecution will respond. “A reasonable doctor would not have done what Murray did” will likely be the prosecution seeds. Listen carefully to opening, what seeds will each side plant? And, will they prove what they say? Or, do they have to?

Simply my opinion, WHAT SAY YOU?

Conrad Murray (Michael Jackson)Trial: Jury Favor Defense or Prosecution?

Does it matter who is on the jury in the Conrad Murray/Michael Jackson Manslaughter Trial? ABSOLUTELY! Just ask Casey Anthony or OJ Simpson.

After picking over 100 jury panels myself as a trial attorney and having trained thousands of attorneys in the “skill” of jury selection, jury selection is critical. If the juror doesn’t identify with your client, the victim and/or can’t be emotionally moved by the evidence, good luck to you.

Without having seen the rapport between the jurors and the lawyers during the lawyers questioning of the jurors, and how the jurors reacted to each others answers among many other factors, let’s just take a look at the initial jury data reported by TMZ. Putting aside how you feel about Dr. Murray or Michael, and given that we haven’t heard any evidence yet, does the jury data tell us anything about how they will vote?

Here’s the Murray Jury: (I have compiled and sorted the initial jury data and added my comments)

7 men. 5 women. 1 African-American. 6 whites. 5 mexican or hispanic. 5 in their 50’s. 4 in their 40’s. 2 in their 30’s.

Property manager. Partner in management consulting firm (foreperson?). College professor (animation). Communications head for international marketing firm. 30 yr paralegal (foreperson?). USPS letter carrier. School bus driver. Customer service rep. TV technical director (foreperson?). Unemployed. And, a Book seller. (Good mix of occupations, surprised, paralegal didn’t get bumped, lawyers generally are head-shy of legal professionals)

8 of 12 are “fans” of Michael Jackson. (Generally, favors Prosecution.)

5  of 12 either work or family member works in medical field. (Could hurt the defense? Many people may believe drugs over-prescribed by doctors, may hold doctors to a higher standard)

7 of 12 with prior jury service. 1 child sex abuse (incest) case juror. (Generally, favors Prosecution unless mostly acquittal verdicts. May not be swayed by media coverage or lawyers “theatrics”, know the rules of the road)

4 of 12 believe “famous or wealthy treated differently in court system”. (Definitely, a head wind for the defense)

3 of 12 watched OJ or Casey Anthony Trial. (Could go either way, but familiar with an acquittal verdict option, possible backlash from Anthony acquittal)

2 reality show watchers (Project Runway, Big Brother, etc) (Could go either way)

2 Crime show watchers (NCIS, Law & Order) (May hold Prosecution to a higher burden)

1 Howard Stern listener. 1 NPR Listener. 1 Ryan Seacrest listener.  (Don’t you just love America!)

1 filed for bankruptcy. 1 unemployed. (Could favor Defense if Murray had financial problems but not if dodged ’em)

And, 7 of 12 with drug addiction in the family. 1 convicted of a DUI. (May favor defense, however, addiction is complex. Manipulative personality? do anything for drugs or view as brain disease? Could go either way, although my sense addiction may create sympathy for Michael?)

Even considering a jurors occupation, or what they watch on TV, we can never know how a juror will vote. But, hopefully, we uncover their biases which preclude them from being “fair and impartial”.

Yet, we are still left with the elephant in the room. Assuming the apparent defense, that Michael ingested himself, Murray still admitted he gave  Michael propofol and others drugs which the medical examiner believes caused Michael’s death. Should a doctor be giving drugs to an addict? On those facts alone, simply a tough case for the defense. Although, it appears they may have picked a balanced jury.

Simply my opinion, WHAT SAY YOU?

Has the Defense found that “one juror” to acquit Murray? Has the Prosecution found 12 jurors who can vote together to convict?