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Zimmerman and society and the future

Zimmerman and society and the future

Zimmerman and where we go from here (or hopefully – don’t)

We’re unhappy with the verdict. We wanted a verdict that closed our nation’s cultural chasm and let families, American families, let their children walk the streets safely at night. We didn’t get that.

We didn’t get that because it is entirely too much to ask the jury system to produce.

Here we’ll discuss a few changes people are clamoring for, and at the end I’ll ask for you to submit yours to discuss in the future.


There’s talk about the system being broken. Something’s wrong with the system and there needs to be a change. I want to address that for a minute because I that is very, very dangerous talk. There’s an old saying in the law that “good cases make bad law”. (“Good” here meaning big or interesting or juicy to a lawyer.) What this saying means is high profile or emotionally charged cases cause people to induce changes in the law that would affect that one particular, peculiar case the way it happened. In many of my other posts I’ve been resistant to law changes. Mainly because these law changes don’t consider the other one thousand, ten thousand, or one million other cases for whom the law was designed, for whom the law was working correctly.

Remember the “We’d rather have ten guilty people go free than one innocent person go to jail?” We all agree that fundamental bedrock of our judicial system when we’re the innocent person, and despise that saying when the guilty person is someone we abhor.

HINT: Not the right answer

There’s three things I could’ve gone wrong in this case three. Three moving parts that always get looked at when something like this happens.

    1. The judicial system or the court: was the court unfair in this case?
    2. The police: the police, or for that matter the prosecutor, do such a poor job that they were negligent in their duties and that caused a guilty man to go free?
    3. The law: is the law in this case so unfair that it needs to be changed?

One by one: I don’t think anyone is suggesting the court itself in this case was unfair. If anything the court was hard on the defense. That’s not a bad thing, if courts are generally hard on the defense, it’s in the nature of the work. A defense attorney is supposed to ask for more than he is supposed to get and the judge is supposed to tell them “no”. This case in particular the judge has been commended as to her adhesion to the law.

What about the police? Did the police do something wrong? Let me put my biases on the table: The police are always always ALWAYS my favorite scapegoat when I have a trial. The police didn’t investigate something, or look at something, or turn over that rock, or if they did, they shouldn’t have turned over that rock. And then I get turnt up. There are some suggestion that the police chief was fired soon after Zimmerman was not arrested in this case. I see all that as a distraction.

That only leaves #3, the law.

What’re we going to do about the law?

Answer: “I don’t know”.

Racial impact of Stand Your Ground law

Laws are going to change because of this. The infamous “stand your ground” law is sure to be looked at with a fine tooth comb. That law itself is not the worst thing in the world.  Basically it says you are not “required” to retreat from someone attacking you, that you may defend yourself. (Hawaii is considered a “stand your ground” state for all except deadly force. In Hawaii you can only use deadly force if you are unable to retreat, among other conditions.) There’s some discussion of “Stand your ground” laws being racist in application.  I can’t find fault with that study.

I’m betting money there are going to be a rash of new “failure to follow the lawful order of a 911 operator”. The problem with those being, that opens a can of worms with liability for the 911 operators being properly trained. They are not psychic, and are often encouraged not to tell you what to do in their training. It would also limit the number of people we would have working at the 911 call center. 911 should operate as a clearinghouse to get police and ambulance to where they need to be. It shouldn’t be a helpline.

The third option I’ve heard is that people want to change the burden of the self-defense statute. Currently only Ohio has Self-defense as an affirmative defense.  What that means is, the burden of proof (see my last post for a graphical representation) is no longer borne by the Prosecutor, but that a Defendant would have to say, “Yes, I did it but…”  Let’s understand what an affirmative defense is: at its very definition, its burden-shifting. Remember our fifth amendment, that no person “shall be compelled in any criminal case to be a witness against himself”, an affirmative defense turns that upside down. No one shall be compelled against themselves, “unless the government thinks you did it, now prove otherwise” is no where in the constitution and shouldn’t be written in there now. If the government can’t prove you guilty with all the powers of the police, the FBI, Homeland Security, and now PRISM, should we really make it easier for them?

Marcus, answer my question: What should happen?

If you guessed an increase in a call for gun laws, you are correct. The chance if it working is none. There’s no chance that stricter gun laws are happening after this if it didn’t happen after Sandy Hook. In fact, I wouldn’t be surprised if this doesn’t cause more people to buy guns.

Because it’s not safe out there.

Trayvon Martin may still be alive if he owned a gun.

Of course, he would probably be in prison.

Which begs the question, do you think the outcome would be different if the races were reversed? Let’s ask Matthew McConaughey what he thinks (start at exactly 4 minutes in):

I’m interested to find out what my readers think is the proper “fix” of the law. What law would you add or change to, well, to keep more people alive? And keep the right people alive, both of which are the goals of the law. Answer below, answer on twitter @landsberglaw, or go to the contact us and answer anonymously. Would love to hear your thoughts!


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Zimmerman as a trial explained

Zimmerman as a trial explained

I don’t think I was shocked by the verdict. Usually, by the end of opening statements experienced attorneys can predict, with reasonable certainty, the outcome of the trial. If you are heavily emotionally involved with the Zimmerman case, this article is not for you.  But I’ve been asked so many times what happened, that I would be wrong if I didn’t discuss, at least from a trial-work and rhetorical point of view what happened, so here you go (click more):

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Responded to comments

Responded to comments

This is a picture of me 100 years ago in North Korea. Yes, NORTH Korea.

So my good friend, and Law Professor in Korea Ben Wagner commented on one of my articles with a very good question.  I figure, let’s discuss it as a main post, rather than bury it in the back of a comment thread.  His original comment is at the bottom of this post, but it can be summed up as (with heavy editing for simplicity):

My understanding is that the prosecutors would have to disclose this stuff motivated by their duty as “officers of the court” … which leads me to wonder how often do such disclosures occur?

And as Ben knows, the perfect law school answer is “It depends”.

Each Prosecutor interprets their duty individually.  Your question is really two-fold, so I’m going to break it in half. 1. How much will Prosecutors disclose information they have. 2. How much will Prosecutors search out relevant information that disproves their case.  Let me take each question in turn.

The answer to #1 is:  Not as often as you think.  My experience is that Prosecutors turn over most of what they know is in their possession.   I can tell you specific stories of a Prosecutor who refused to tell me a certain witness had died (in order to strongarm a plea) who dismissed the case only after I demanded trial (He’s now a defense attorney).  As a matter of course, Prosecutors will insulate themselves from witnesses (using Victim Witness Advocates) so as to protect themselves from having to turn over “new statements” they may make.

About a year ago now, Prosecutors in Honolulu were refusing to turn over the handbook and the specifications for the “Speed Gun” that Police were using to cite people for speeding and excessive speeding.  This went on for over six months or so.  Cases were getting continued or dismissed because Prosecutors refused to turn over this information.  They had a number of different reasons, but it seems if they’re going to introduce an instrument that proves a fact, the instrument better have some science behind it to prove that fact. And a defense attorney has no way to tell that the instrument is anything more reliable than a “Magic 8-ball” without the documentation.  This is just one example of the Prosecutors not turning over important information. see Sat Freedman’s cross-examination in State v. Assaye.

Currently, good luck getting the mainland criminal record of a Prosecution witness without a court order. It seems a clear violation of BRADY v. MARYLAND, 373 U.S. 83 (1963).  But the Office of the Prosecutor reads it differently and they follow it their own way.  The most recent rumor I have heard is that the deputies of the Office of the Prosecuting Attorney in Honolulu has been ordered not to turn over subsequent witness statements that contradict original witness statements, particularly for Abuse-type cases. The rumor goes that a number of local prosecutors quit, rather than follow this rule which they see as unethical.  Again this is a rumor…

Let’s look at sub-question #2: How often will the prosecutors search out information that contradicts their case.  To this I have say, in my experience, the answer is has been an unequivocal “NEVER” with one minor equivocation that I’ll get to in a minute.

My experience is Prosecutors take the reports from the police, any background they can get easily.  Anything their investigators have picked up while trying to serve witnesses or doublecheck locations, and make a choice, conscious or otherwise.  This choice is to believe everything that supports their case, and discard anything that doesn’t support their case as a lie.  And that’s it. Finished.



His speech on Prosecution should be mandatory reading.

Attorney General Robert H. Jackson got to this question before me in a speech he gave to the Department of Justice in 1940:

One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.

So, as they admittedly can’t investigate even their own cases, they’re not investigating the Defense’s.  It is an interesting debate (and beyond the scope of today’s post) whether the presence of a Defense Attorney provides the Prosecutor with a reason to be a) lazy, b) secretive, or c) overly conviction oriented.  Doesn’t the presence of a Defense Attorney give the Prosecutor the excuse of “well, if it isn’t fair, the attorney will stop it”?  It is the exceptional prosecutor that remembers his duty is to the truth, rather than the complaining witness.  Every time a Prosecutor has called that witness his “client”, or treated the witness as such, lays bare their true thought processes.

Back to the point already!

So here’s the caveat that ties together with the original post.  When do the Prosecutor or his investigator turn over, or find, information that benefits the defense? When it is requested by the Defense Attorney.  That’s how it all comes full circle.  How am I going to get priors in an abuse case? By finding out about them first, and then making a good faith request from the Prosecutor.

When I make certain requests, as defined by the Rules of Evidence and Penal Procedure.  The Prosecutors are required to make a Good Faith Effort to find this information, make a determination if I receive it, and then response to the request, either with the evidence or why I don’t get to receive it.  In Hawaii, this was recently reiterated by HPD v. Town.

Is Strauss-Kahn the best example of this?

Maybe, and here’s why.  There were no Defense Attorneys three weeks ago (or whenever) and the case was filed, pressed, and he was locked up with a bond of 5 million dollars. When he bailed out, he had to remain at home and notify the prosecutors every time he wanted to leave.

What has changed?  Did the Prosecutor’s duties change? Did the fact that she may have lied on Federal Documents change? These are not new facts.  These are facts the Prosecutors had every opportunity to find before the arrest, before the bail requirements that cost Strauss-Kahn $250,000 a month on top of his bond.

What changed is, he started defending his case.  He did not own up to it immediately and ask for leniency.  And now the Prosecutors are realizing what they should have done prior to pressing the charge.  And they still haven’t dropped the charges, they just turned the discovery over.  But it sounds like they’re starting to doubt their own accusations.  And if they have doubt, ethically they should probably drop the case.

Look, do I have any idea what happened in that bedroom, wether it was between two consenting adults, or wether it was a vicious rape by a sadist, drunk with the power of all the money in the world? Absolutely not.  But I don’t think the government even has probable cause anymore. Remember probable cause is:

Information sufficient to warrant a prudent person’s belief that the individual had committed a crime.

And the more information I get, the less likely I think there is probable cause here.  But then, I’ve never been accused of being a prudent person.

Let me leave you with the closing of Jackson’s speech, as true in 1940 as it is today:

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.


Better Believe It

Defense work.  That’s why Strauss Kahn is set free on no bail.

The Prosecutor’s had their case all set: ”The proof against him is substantial. It is continuing to grow every day as the investigation continues,” Assistant Dist. Atty. John McConnell told the judge then. “We have a man who, by his own conduct in this case, has shown a propensity for impulsive criminal conduct.”

But something changed.  What changed is that Strauss Kahn and his Defense Attorneys started looking at the accusation with a “critical eye”.  Looking with a critical eye is the basis of our system of justice.  The reason we have an adversarial system, as opposed to France, for example, is that it is simply human nature to find a ball and run with it.  Once you believe in something, everything you see or do is proof of that belief.

Watch, on a day when you feel bad, your husband cooked breakfast you didn’t want, you’re stuck in traffic 10 minutes too long, and were almost in a car accident next to you. Maybe you should have stayed in bed.

On a day when you feel good, you didn’t have to cook breakfast, you got to listen to your favorite radio station 10 more minutes, and your life was saved when a car got into an accident with another car besides yours.  I got to say it was a good day.

Police, Prosecutors, investigators are all human.  Then arrive at a scene and they want to find out what happened.  They want to believe no one’s lying to them. And generally, without blatant indisputable evidence to the contrary, they do believe.

Prosecutor’s often differ as to what level they need to investigate a case.  Often there are time limitations on both the police and prosecutor’s investigations.  There is always manpower limitations.  Science limitations, specialized knowledge limitations, access limitations.

To the Police and the Prosecutor’s, this makes Strauss-Kahn a sitting duck:

Prosecutors get one version of a story, and consider anything that opposes it to often be a lie.  Furthermore, they often don’t get an opposing point of view.  First, the lack of investigations on cases that do not involve the Chief Executive Officer of the IMF are often astounding.  Furthermore, because of the Fifth Amendment to the Constitution, they almost never get the Defendant’s side of the story before an arrest is made.  And after the arrest is made, the goal is to convict, not to find out the truth.

Strauss Kahn, by engaging with a competent Defense lawyer as soon as he was able, has got the Prosecutors to do almost a 180.  His attorney was able to get a judge to question the maid’s history, and how much of it she related to the Prosecutor and the police.  They were also able to show that her recitation of the surrounding facts show much to be desired, although they don’t let us know yet exactly what those facts are.  The prosecutor saw a duck and went duck hunting.

Unfortunately, the fundamental failure in our judicial system is that, no matter what, Strauss-Kahn has already lost his job.  He has already probably lost his support to run for president of France.  And for the rest of his life, whenever you google his name, you will see this:

So go back up and look at your sitting duck, and now all you see is a cute, cuddly, bunny rabbit.


Hawaii Criminal Defense: The Legal Blog

Issues in Hawaii Law.

Below is a collection of Articles I've written about Hawaii law.  Most are about criminal defense, Honolulu trial work, or future legal trends. Courtroom experience is probably the most common.  Others are comments on local or national law.  Hopefully there is something for you to find and enjoy.  If nothing else, you'll see the way I feel about certain issues, and the thought processes I put into legal problems we solve.

And some stories are just too funny NOT to tell.......

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