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George Zimmerman Files New Motion for Bond

Mark O'Mara has filed this motion seeking a new bond for George Zimmerman. The motion will be heard June 29. [More...]

The media has filed this motion seeking the second recorded conversation of Witness 9, whom the Orlando Sentinel identifies (correctly in my view) as Zimmerman's ex-girlfriend (the one who filed the restraining order.) The prosecutor identfied her by name at the bond hearing, and submitted exhibits with her name on them. Both sides have said she won't be a witness and her statements are inadmissible. (She and Zimmerman broke up in 2005.)

The media also wants all the jail calls released.

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    Questions for Jeralyn and the lawyers (5.00 / 1) (#3)
    by citizenjeff on Mon Jun 25, 2012 at 02:37:18 PM EST
    From 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."

    1. Do you think O'Mara is just being deferential to the judge for strategic reasons, or does he actually believe that Zimmerman was required to "correct" his wife's testimony?

    2. If he was so required, exactly when and in what manner was Zimmerman required to make the "correction"?

    3. Wouldn't a requirement to correct his wife presuppose that he was required to listen to the testimony and understand that it was unlawfully inaccurate or incomplete?  

    4. Has a defendant ever before been held accountable for failing to "correct" the testimony of a witness?


    Speculation (none / 0) (#6)
    by cboldt on Mon Jun 25, 2012 at 03:10:07 PM EST
    I think what Lester expected was Zimmerman to apprise O'Mara, on the spot or before, that the website had accumulated funds in excess of $135,000; but he didn't know how much was there, at the moment.

    I think O'Mara is earnestly deferential.  Not that this is some sort of strategy, but that he agrees the judge's anger is justified.  I don't think he agrees that Zimmerman's bond should have been revoked, but it's a battle he thinks is not worth fighting vigorously.

    As failures of justice go, this is a small one.

    Parent

    Agreed (none / 0) (#9)
    by expy on Mon Jun 25, 2012 at 03:38:50 PM EST
    Part of the problem is that O'Mara's own reputation and credibility is on the line. If O'Mara had known about the money at the time of the first bond hearing, it would have been a clear breach of legal ethics for him to present testimony representing the client as indigent.

    It seems that O'Mara did take action to rectify the situation after the bond hearing, consistent with him learning about the funds later.

    In any cases, the jail tapes show Zimmerman as an active participant in moving the money out of the PayPal account ahead of the hearing, which could be taken as preparatory to concealing the funds. Given that I don't think it would be wise for O'Mara to set up a situation for further inquiry.   Neither Zimmerman nor his wife can testify at this point as to those transactions for 5th amendment reasons - and admission of wrongdoing and an apology are the best that O'Mara has to move on.

    I agree that the Judge is likely to set a bail and probably is legally bound to. But he has very broad discretion as to the amount of that bond, and ticking off the Judge will only lead to a higher bond being set.

    Also, if the Judge wanted to deny bond based on the asserted strength of the prosecution case, I think that for purposes of the order denying bond, the Judge could cite to concerns about the defendant's credibility. That is, even though I don't think the misrepresentations about the bond money can be used against Zimmerman at trial, I do think that could be used as rationale for purposes about the bond.

    So again, not the best point in time for the lawyer to get into a piddling match with the judge.  

    Parent

    I think O'Mara will fight it (none / 0) (#10)
    by cboldt on Mon Jun 25, 2012 at 03:49:21 PM EST
    To clarify my remark that O'Mara would not fight this vigorously, I meant to convey his reluctance to appeal Lester's illegal order of June 1, not reluctance to the extent he will let Zimmerman stay in jail until the Dennis hearing and/or trial.

    Rule 3.132 and it's statutory underpinnings are clear, and well expounded in the Paul case.  Lester can't claim ignorance of the law in his next ruling.  Not that he claimed ignorance in his June 11 order, just that his June 11 order demonstrates failure to apply the controlling law to the situation at hand.

    Defendant's credibility is irrelevant under the law.  So is his attitude, except if his attidute indicate flight risk, danger to community, or danger to the judicial process via intimidation or buying of witnesses.  Not that Lester is demonstrating following of the law, so far, and if past practice is an indicator of future performance, then yeah, he'll deny bond on some made-up claptrap.  Your proposal is as good as any, for that purpose.

    Parent

    When O'Mara said... (none / 0) (#14)
    by Repack Rider on Mon Jun 25, 2012 at 04:37:33 PM EST
    "...Mr. Zimmerman accepts responsibility...," what did he mean?  No harm, no foul, can we go now?

    If there are no unpleasant consequences, then "accept[ing] responsibility" means something different to him than it does to me.

    Parent

    A month in jail and $15k to the bail bondsman (5.00 / 1) (#15)
    by MJW on Mon Jun 25, 2012 at 04:46:24 PM EST
    I call those consequences.

    Parent
    Overcoming my reluctance (5.00 / 1) (#16)
    by cboldt on Mon Jun 25, 2012 at 04:51:08 PM EST
    I can think of many wrongs I've accepted responsibility for, where there weren't any consequences, let alone legal consequences.

    Has the court established that it is legal to revoke bail for sitting like a potted palm?

    Parent

    it is legal to revoke bail (5.00 / 1) (#19)
    by expy on Mon Jun 25, 2012 at 06:42:07 PM EST
    when the bail has been granted based on material false representations to the court.

    You might not like what the court did, but at least O'Mara has the sense not to cry foul over circumstances he & his client created.

    Parent

    Be more specific (5.00 / 1) (#20)
    by cboldt on Mon Jun 25, 2012 at 06:49:28 PM EST
    Not all material misrepresentations are legal grounds for bail revocation.

    Tie the material misrepresentations to the grounds permitted for revocation of bail, in the state of Florida.  The material misrepresentations must result in a finding the defendant is a flight risk, or a danger to the community, or will tamper with a witness.

    You might not like what the law is, but there it is.  It's not crying foul, when the law is not properly applied.

    Reading you, I'd be inclined to conclude that you have no respect for the law.  You're in good company, I don't either, because judges and fast talking lawyers make a mockery of it.

    Parent

    I've cited the statute here before. (5.00 / 1) (#21)
    by expy on Mon Jun 25, 2012 at 07:17:27 PM EST
    and the court cited the corresponding rule of court.

    I'm not going to waste my time looking it up again.

    To paraphrase, it says that when the defendant fails to disclose pertinent facts during a bond hearing, the court may revoke bail.

    The defendant is recorded actively directing the management of the funds, in a very clear attempt to conceal them -- including placing money in his wife's account that is immediately transferred back to him as soon as he is out on bond.

    Bail is a form of conditional release pending trial. One of the conditions is that the defendant tell the court the truth in a bond hearing.

    You apparently have the opinion that a defendant is perfectly free to lie to his lawyer and allow members of his immediate family to lie to the court in order to get a favorable determination on bail, and then avoid all consequences because he wasn't the one who personally made the statements to the court.

    The court doesn't buy that argument.  I don't buy that argument.  As far as I can tell, O'Mara doesn't buy that argument -- he certainly has avoided making it.  

    I'm sure it would be interesting for some other lawyer to litigate that point on appeal while his client sits in jail. As far as I know there is no case law on point.  

    Perhaps you can cite some before going around insulting people ("no respect for the law").  

    I certainly do have respect for the integrity of the judicial process, and I personally find it appalling that someone would think it acceptable to condone the sort of deception that took place in this case. I was always under the impression that as a member of the bar, I was an officer of the court. My first duty was to my client, but that didn't extend to helping my client hide assets and lie about them.  (I'm not saying that O'Mara did so. I'm pointing out why he is probably rather averse to making the argument you proposed.)

       

    Parent

    You didn't have to type all that (5.00 / 1) (#23)
    by cboldt on Mon Jun 25, 2012 at 07:31:34 PM EST
    I paraphrased the relevant law in my brief remark.  O'Mara does the similar in his brief via citation to the Paul case and F.S. 907.041.

    Those are the law.  Show us all how it's been properly applied.

    Parent

    Law cited by judge (5.00 / 1) (#26)
    by expy on Mon Jun 25, 2012 at 08:09:00 PM EST
    All information provided by a defendant in connection with any application for or attempt to secure bail, to any court, court personnel, or individual soliciting or recording such information for the purpose of evaluating eligibility for or securing bail for the defendant, under circumstances such that the defendant knew or should have known that the information was to be used in connection with an application for bail, shall be accurate, truthful, and complete, without omissions, to the best knowledge of the defendant. Failure to comply with the provisions of this subdivision may result in the revocation or modification of bail.

    Florida Rules of Criminal Procedure #3.131.  

    There's a also a corresponding statute that says essentially the same thing, which I am not going to bother to look up right now.

    Needless to say, its not the same provision you are citing, which has to do with the issue of pre-trial detention, not revocation. The Judge has not ordered pre-trial detention nor has the prosecution moved for it, so that is not at issue at the moment.  

    There is also another section of the same court rule which specifies as follows:

    Revocation of Bail. The court in its discretion for good cause, any time after a defendant who is at large on bail appears for trial, may commit the defendant to the custody of the proper official to abide by the judgment, sentence, and any further order of the court.
     

    And another section (g) which says that the court can have the defendant taken into custody any time that:

    the court is satisfied that the bail should be increased or new or additional security required.

    Then section (h) of the same provision goes into detail as the procedure for "Bail after Recommitment" -- which essentially says that the same rules that go for the initial application apply.

    Zimmerman's bail problem is one of his own making.   His lawyer is doing the best he can to try to smooth things over and extricate his client from the current hole he dug for himself.

    But Florida statutory law makes it pretty clear that a Judge has extremely wide discretion when it comes to revoking or modifying bail amount and conditions.    

    Again, if you can come up with case law that places limits on this authority, go ahead.

    But please don't fling insults at people who disagree with your interpretation of the law.


    Parent

    Just thinking aloud (5.00 / 1) (#30)
    by cboldt on Mon Jun 25, 2012 at 09:53:17 PM EST
    Florida Rule of Criminal Procedure 3.131 sets forth the process and criteria for pretrial release.  You cite it as the appropriate rule for imposing detention after pretrial release has been granted, but setting that aside ...

    3.131(b)(5) All information provided by a defendant in connection with any application for or attempt to secure bail ... shall be accurate, truthful, and complete, without omissions, to the best knowledge of the defendant. Failure to comply with the provisions of this subdivision may result in the revocation or modification of bail.

    No doubt, that is true.  But defendants give information other than financial information, and the issue before us at this instant is whether or not omissions in financial information are per se grounds to revoke bail.  That cite, without more, doesn't resolve the question before us (and I know this because I've read the Paul case and a few others on the question of legal basis for bond revocation).

    You also quote another section, and add underlines for emphasis.  I'll do the same thing, with the same section.  You'll get the point, I believe.

    3.131(f) Revocation of Bail. The court in its discretion for good cause, any time after a defendant who is at large on bail appears for trial, may commit the defendant to the custody of the proper official to abide by the judgment, sentence, and any further order of the court.

    Subsection (g) is interesting.  It allows an arrest order on any one of three specific conditions, and only on those conditions.  Breach of the undertaking (no show to court), the sureties are dead, or the court is satisfied that bail should be increased or new or additional security is required.  Judge Lester's order doesn't mention any of these conclusions.

    Subsection (h) essentially forbids court/judge shopping following an unfavorable pretrial release order.

    You assert that Florida statutory law gives the court wide latitude to revoke bail.  Do you read State v. Paul, 783 So. 2d 1042 (Fla. 2001), applying F.S. 907.041, as granting the court wide latitude to revoke bail?

    In the Zimmerman case, the state cited rule 3.132 - pretrial detention, and asked for bail to be revoked.  It is now pretrial.  Zimmerman is under detention.  I'm still trying to figure out the distinction between pretrial detention and revoking bail.  I don't see a legal justification for NOT using the criteria the state imposes for no bail incarceration of a presumed innocent, just because the term of no-bail incarceration is indefinite.  But that said, the state invoked rule 3.132 and requested bond be revoked.  That resulted in Zimmerman being detained, pretrial.

    Parent

    I suggest you read the Florida Statute (5.00 / 1) (#45)
    by expy on Tue Jun 26, 2012 at 02:36:33 AM EST
    that governs criteria to be considered in granting bail (Section 903.046)

    I'm not going to set it all out here, but it does require the court to consider ("shall" rather than "may") numerous factors, including the defendant's "financial resources" and "source of funds" for bail.  (The "source of funds" part is more concerned about possible illegal sources, such as drug money -- but the point is that Florida law makes clear that finances are part of the picture).

    Revocation is not the same as detention without bond, because the defendant is entitled to  make a renewed motion for bond. I'm sure that if O'Mara had wanted an earlier hearing, he could have arranged it ... though I understand fully why he didn't seek an earlier date given the circumstances.  

    Parent

    I read 903.046 (none / 0) (#49)
    by cboldt on Tue Jun 26, 2012 at 04:43:09 AM EST
    F.S. 907.041 points to 903.046.  IIRC, I made a post a couple weeks ago noticing that. I used "907 does not equal 903" or something like that as the title.

    I hear you on revocation not being the same detention without bond (one is money, the other is liberty), but riddle me this, is detention without bond the same as detention without bond?

    Is Zimmerman detained?  Is he allowed to post bail or a bond?  Is he detained without bond?

    If you don't like looking at the law that way, FN14 of the Paul case says that 907.041 applies to an order revoking bond.  Lester's order of June 11 is an order revoking bond.

    Did Lester apply the controlling legal authority?

    I'm open for a citation to legal authority for the proposition that Lester can detain defendant without bond, (after granting pretrial release), outside the limitations of Paul and F.S. 907.041.  If I understand your statement of what the law is, it's that the court can revoke bail and detain defendant without bond, without applying Paul, and outside the limitations of 907.041 and the Florida Constitution, because defendant is entitled to make a renewed motion for bond.

    Parent

    The revocation (5.00 / 2) (#54)
    by expy on Tue Jun 26, 2012 at 05:49:30 AM EST
    restored the defendant to the position he was before the initial bond hearing.

    You seem to harbor some sort of belief that a person a cannot be held for any period whatsoever without setting of a bond... but that just isn't how it works.  That would mean no one could ever be arrested unless a warrant had first issued with a bond amount set.  

    There is a procedure in Florida for setting a motion a bond motion on calendar. I don't practice there so I don't have a clue what that might be. But generally that sort of thing involves the lawyer requesting the court clerk to put the matter on calendar. I'm guessing that if Zimmerman turned himself on Sunday, the matter could have been put on calendar on the following Tuesday.

    O'Mara chose not to do that. As I've said, I fully understand what his problem was, and why he made that choice. But basically Zimmerman has been sitting in jail the past 3 or 4 weeks or however long it has been because his own lawyer didn't put a bail motion on calendar.

    If he had, and then the Judge had denied bail,we'd be having a different discussion, but that's not what happened.  
       

    Parent

    Well, cite your authority (none / 0) (#56)
    by cboldt on Tue Jun 26, 2012 at 06:08:02 AM EST
    I do happen to hold a belief that unless the conditions set forth in the law admit it, and the court follows the procedures set out in statute and rules of procedure, a person cannot be held without bail.  We have a specific case in front of us, Zimmerman.  He was out on pretrial release for weeks.  His bond was revoked.  The judge ordered defendant held in no bond status.  The judge did not follow Rule 3.132, or apply 907.041.

    I notice you do not answer my questions directly, nor do you assert that my citations are incorrect. You make a fresh conclusory assertions, which could be easily supported with a strawman if you are challenged; like the "could never be arrested" strawman, above.

    We're never going to agree on this point, but I find Zimmerman is in jail because the judge did not apply the controlling legal authority.  I've cited authority for my proposition, and you have not confronted my propositions head on.

    Parent

    Adding criticism of O'Mara (none / 0) (#58)
    by cboldt on Tue Jun 26, 2012 at 07:02:20 AM EST
    While I expect Lester to apply the controlling legal authority, and I find he does not, it's obvious that incorrect rulings by trial courts do happen, as we see cases and rulings reversed on appeal.

    I've questioned and criticized O'Mara too, for delay in asserting the law.  The fact that O'Mara is slow to do so doesn't excuse or justify the court's error in the first place.

    As to the general argument that all the Jun 1 / June 11 order does is restore Zimmerman to the position he was in on April 20th, Florida law handles the detention of accused differently on an initial hearing (is he entitled to pretrial release, the court found "yes" he is), than it does on revocation after pretrial release.  There are fairly short timespans on the initial detention, pending an initial hearing, and as Jeralyn has pointed out, 3.131 controls that process.

    My contention is that Paul and 907.041 control the revocation of bail; and that Lester did not apply Paul or 907.041 in his order revoking bail.

    Parent

    The difference (none / 0) (#32)
    by MJW on Mon Jun 25, 2012 at 10:18:45 PM EST
    I'm still trying to figure out the distinction between pretrial detention and revoking bail.

    Florida law consistently uses "pretrial detention" to mean "no bail before trial," while revocation means taking away the current bail.  To quote the Paul v. Jenne (upheld in Paul v. State):

    Although we agree with Houser that a trial court has the authority to revoke a defendant's bond under pretrial release rules allowing arrest and recommitment for bond violations, and pursuant to the court's inherent power to enforce its own orders, we disagree that a trial court has the absolute discretion to deny bond unless a defendant meets the criteria for detention without bond under the pretrial detention statutes. By breaching a condition of the bond originally set by the court, a defendant forfeits the right to continued release under the terms of that bond. However, the defendant does not forfeit his or her constitutionally guaranteed right to bail altogether; a refusal to readmit a defendant to any bail at all must be subject to the limitations of the pretrial detention statute.


    Parent
    Two differences (none / 0) (#40)
    by cboldt on Mon Jun 25, 2012 at 10:59:03 PM EST
    On revoking bail (or revoking bond) and pretrial detention, which you define as "no bail before trial."

    One difference is the presence or amount of bail, or a bond in lieu of bail.  IOW, A bond can be revoked, and a new one substituted 10 minutes later.  Or a bond can be revoked, and now we're sitting in limbo, but it isn't pretrial detention yet.  It's just "bond revoked."

    The other difference, at least the way I've been taking your statements, has to do with the duration of being under a no-bond order.  The way I've been taking your remarks, it isn't pretrial detention unless the no-bond order runs the entire duration from the order until the trial.  The way I've been taking your definition of pretrial detention, if defendant is held without bail, as Zimmerman is now, it is NOT pretrial detention, because there is no order that says the condition of no bail is persistent to the trial.

    I'm of the view that if he is held without bail for one day, before trial, he is under pretrial detention.

    Parent

    Florida's definition (none / 0) (#46)
    by MJW on Tue Jun 26, 2012 at 03:58:03 AM EST
    The way I've been taking your remarks, it isn't pretrial detention unless the no-bond order runs the entire duration from the order until the trial.  The way I've been taking your definition of pretrial detention, if defendant is held without bail, as Zimmerman is now, it is NOT pretrial detention, because there is no order that says the condition of no bail is persistent to the trial.

    That's not my definition of pretrial detention, it's the definition used consistently in Florida statutes and case law. "Pretrial detention" means no bail before trial. I believe under Florida law defendants can be jailed for several days without violating the constitutional right to bail.  For example, Rule 3.132 permits the defendant to be held for up to three days while the state prepares to file a motion for pretrial detention.

    Parent

    Duration + FN 14 (none / 0) (#48)
    by cboldt on Tue Jun 26, 2012 at 04:28:35 AM EST
    I think the definition used consistently in Florida statutes and case law meets my take, not yours.  Although, I agree that a bond (a money thing) is not the same as detention (a liberty thing), so, technically, revoking a bond isn't the same as an order that says "no bail."  I think the process of 907.041 swirls around the "no bail" order, which may or may not involve revocation of a bond or revocation of bail.

    "No bail"  -- check

    "before trial" -- check

    I see and understand, I think, the few days no-bail detention allowed at the outset of the prosecution.  The few days allowance is around that "first hearing," not after the Court has ordered pretrial release, and the defendant has been out on bail for weeks.

    Where do you find that detention without bail isn't pretrial detention, unless the order says whatever it takes to make it reach to trial?

    And even if you do see a difference between bond revocation (resulting in detention without bail) and pretrial detention, FN14 still says that bond revocation must comport with 907.041 and the Florida Constitution.

    Parent

    note (none / 0) (#28)
    by expy on Mon Jun 25, 2012 at 08:32:41 PM EST
    I'd add that the very broad (g) provision I quoted above corresponds to a statute -- 918.01 -- that appears to have been repealed.

    In any case, that isn't the section the court relied on. The section that the court did cite corresponds to Florida Statutes 903.035.  

    Parent

    Rules is rules but.... (none / 0) (#60)
    by heidelja on Tue Jun 26, 2012 at 08:06:39 AM EST
    Shouldn't the "date of application" for bond be seen to be the date bond was requested? The fact that all went down on Apr 20 was because of the Court's administration of the matter. It could have occurred the day after GZ was arrested. Generally, the pleadings of the Zimmermans on Apr 20 reflected accurately their financial situation at the time of his arrest. All that has gone on RE: GZ's Bond is a sham of justice because the Court does not recognize the odd reality of the matter that one is in a better financial situation for having been jailed for nine days awaiting bond! Seemingly the longer he was jailed the more received while preventing the defendant direct knowledge and control of an increasing sum of money for which goes represented in hindsight "he had all along" because it pleases the court.

    In my view Lester has behaved more like an elected hypocritical politician running for reelection than a Circuit Court judge.

    Parent

    expy "personally find[s] it..." (5.00 / 1) (#25)
    by citizenjeff on Mon Jun 25, 2012 at 07:49:13 PM EST
    "...appalling that someone would think it acceptable to condone the sort of deception that took place in this case."

    We don't know the purpose of the deception. It might have nothing to do with fooling the judge so bond would be low.

    Whatever kind of deception it is, I don't know who's condoning it. It seems the disagreement is over interpreting the law, not how anyone feels about deception.

    I'm wondering if expy can cite any comparable examples of a defendant being held accountable for someone else's testimony. If not, why should we assume the statue the judge cited applies to Zimmerman?

    Parent

    Discussion from 9 days ago (none / 0) (#27)
    by cboldt on Mon Jun 25, 2012 at 08:16:53 PM EST
    You didn't participate, but the subject of the legal standard for revocation of bail was discussed in George Zimmerman: Written Order vs. Oral Ruling at Bail Hearing - TalkLeft - 13 June 2012

    Yman and I debated "what is the legal standard for revocation of bail," and whether or not Judge Lester's order followed that standard.

    As for O'Mara making the argument I propose (to follow the law), he makes it in his June 22 Motion, paragraph No. 7.

    I have a low opinion of lying to the court.  Libby's prosecution was well taken, and the conviction was fair.

    I also have a low opinion of judges who fail to apply the law.

    Parent

    Revocation versus pretrial detention (none / 0) (#22)
    by MJW on Mon Jun 25, 2012 at 07:30:39 PM EST
    Revocation is not the same as pretrial detention.  Revocation can be temporary.  Unless the defendant is charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident and the presumption great, the court's discretion to deny a subsequent application for bail is circumscribed by 907.041 (and now 903.0471).  That was the finding of State v. Paul.

    Parent
    I'll have to dig for it (none / 0) (#24)
    by cboldt on Mon Jun 25, 2012 at 07:34:50 PM EST
    I recall a citation that held bond revocation requires application of the same statutory standard as pretrial detention.

    Revocation and pretrial detention may be different things, but the same legal standard has to be met by the judge imposing revocation, even if he says it is subject to review.

    Parent

    Is this the cite? (none / 0) (#31)
    by cboldt on Mon Jun 25, 2012 at 10:15:56 PM EST
    You mentioned that bail revocation is not the same as pretrial detention, and I offered to look up the case that said the two were held to the same criteria.  I think that case is the Paul case, see Footnote 14.

     We agree with the reasoning of Paul. The Florida Constitution guarantees the right to bail with limited exceptions, and in accordance with this guaranty, the Legislature has created a comprehensive and carefully crafted scheme for setting forth the circumstances under which a defendant may be held in pretrial detention. <sup>14</sup>

    --

    <sup>14</sup> ... Additionally, by enacting section 903.0471 and section 907.045(4)(b)7, the Legislature used the term "pretrial detention" in a way that signifies that the term applies to a revocation of an existing bond. Accordingly, the
    Legislature's enactment of the 2000 amendments supports our holding in this case that section 907.041 applies to revocation of an existing bond.



    Parent
    I'm not sure what the court means (none / 0) (#35)
    by MJW on Mon Jun 25, 2012 at 10:32:37 PM EST
    It could mean that a court can't revoke bond unless the criteria in 907.041 are met, but I tend to think it means that if bond is revoked, the criteria for denying a new bond are the same as the criteria for denying the original bond.  In other words, whether 907.041 applies to all applications for bond, or only the first bond.

    Parent
    Detention is detention (none / 0) (#36)
    by cboldt on Mon Jun 25, 2012 at 10:42:03 PM EST
    I think the court can revoke a bond, but it can't impose a no-bail condition without conforming to the FL Constitution and FS 907.041.

    Zimmerman is being held on a no-bond order.

    Lester has not followed 907.041.

    Parent

    Temporary revocation (none / 0) (#41)
    by MJW on Mon Jun 25, 2012 at 11:09:10 PM EST
    I don't recall reading any Florida court opinions on the issue, but my impression from the cases I've read is that the judge can revoke bond, but the defendant has a right to seek a new bond in far less time than a month.  Of course, O'Mara's to blame for that, since he didn't press the issue.  Perhaps he thinks the judge would see it a penance by Zimmerman, which will ultimately be to his advantage.

    Parent
    Temporary or not (none / 0) (#42)
    by cboldt on Mon Jun 25, 2012 at 11:22:57 PM EST
    The Paul case says bond revocation must comport with 907.041. Period.

    My sense is that bond revocation results in detention, and detention has to be justified under the limitations of the Florida Constitution, and 907.041.

    My sense is that the process isn't set up so the judge can revoke bond (on a reason that doesn't represent risk to the community or the judicial process), then the burden is on defendant to request a new bond.  If bond is to be revoked, even for a day, even for a minute, the judge has to follow 907.041.

    Parent

    Period? I say Question Mark (none / 0) (#44)
    by MJW on Tue Jun 26, 2012 at 12:41:36 AM EST
    Paul v. State affirmed Paul v. Jenne, and quoted with approval the section I quoted above.  That section specifically recognized a trial court's "authority to revoke a defendant's bond under pretrial release rules allowing arrest and recommitment for bond violations, and pursuant to the court's inherent power to enforce its own orders."  I think I agree, though, that misrepresentations at a bond hearing are only grounds for revocation if the misrepresented facts would have justified denying bond, had they been known.  

    Parent
    Beating this thing to death (none / 0) (#52)
    by cboldt on Tue Jun 26, 2012 at 05:15:24 AM EST
    You previously quoted this from Paul.  I think it supports my view that bail may not be revoked outside of 907.046.  Start at the "we disagree" phrase ...

    Although we agree with Houser that a trial court has the authority to revoke a defendant's bond under pretrial release rules allowing arrest and recommitment for bond violations, and pursuant to the court's inherent power to enforce its own orders, we disagree that a trial court has the absolute discretion to deny bond unless a defendant meets the criteria for detention without bond under the pretrial detention statutes. By breaching a condition of the bond originally set by the court, a defendant forfeits the right to continued release under the terms of that bond. However, the defendant does not forfeit his or her constitutionally guaranteed right to bail altogether; a refusal to readmit a defendant to any bail at all must be subject to the limitations of the pretrial detention statute.

    On June 1, Zimmerman was ordered to turn himself in within 48 hours, and be held in detention without bond.  BTW, I don't know of any evidence or assertion that Zimmerman breached a condition of bond.  That aside, I read the above as distinguishing the money interest (the bond) from the liberty interest (held without bond).  In your 12:41:36 AM EST, you recapitulate the right to revoke bond part, the money interest part.  What about the liberty interest part?

    I read that as circumscribing the court's power to detain without bail, and requiring that the court adhere to the pretrial detention statutes in an order that detains without bail.

    Is it your take that "revoke bond" is shorthand for an order that recites "Defendant ordered held on a no bond status until further order of the Court," and that if the order is thus, it is not pretrial detention (without bail)?  That if the Court orders pretrial detention, the order will recite something like "Defendant ordered held on a no bond status until trial."

    My take of Paul is that it admits a court to tinker with the money interest, that is, the order can say "The defendant's bond is hereby revoked." and that recitation, without more, does not impact defendant's liberty interest, and so revocation, standing alone, does not trigger the material in 907.046, and Rule 3.132.

    But in the instant case, the order is not limited to bond revocation.  It includes a recitation to be held in a no bond status.  How does your blockquote from Paul apply to the part of the order that impacts Zimmerman's liberty interest?

    Parent

    My take (none / 0) (#78)
    by MJW on Tue Jun 26, 2012 at 03:53:46 PM EST
    First, I agree that Zimmerman violated no bond condition, and as I previously mentioned, I don't think the statute and rule allowing revocation for misstatements at a bond hearing allows revocation as punishment for the misstatements.  I think it only allows revocation if the misstatements may have affected the decision to grant bond.

    Getting back to Paul, the court says it's okay to "revoke a defendant's bond under pretrial release rules allowing arrest and recommitment for bond violations." As far as I know, "recommitment" means to put back in jail.  The court says it's not okay to "deny bond unless a defendant meets the criteria for detention without bond under the pretrial detention statutes."

    Part of the problem is that the judge isn't following the normal procedure of rearresting the defendant and then promptly holding a hearing to decide the new release conditions.  If he'd held a hearing in a day or so, I don't think the jail time would be considered pretrial detention, by me or under Florida law.

    Parent

    The cases involve breach of a condition (none / 0) (#53)
    by cboldt on Tue Jun 26, 2012 at 05:45:00 AM EST
    -- my impression from the cases I've read is that the judge can revoke bond, but the defendant has a right to seek a new bond --

    I've only read half a dozen or so cases, and my memory isn't all that hot, and I didn't take any notes, so, take this FWIW ...

    In the bond revocation and hold with no bail cases I've read (bond revoked following a grant of pretrial release), ALL of them conclude that the pretrial detention process must be followed.  Find one that does not so hold.

    Also, in the bond revocation and hold with no bail cases I've read, the justification for renewed detention after a grant of pretrial release was either defendant committed a crime while out, or defendant breached a court-ordered condition for release, or defendant met one of the conditions set out in 907.046.

    Barnes v. State (Fla. 4th DCA 2000) - defendant held on no bond as a danger to community (DUI repeat)

    Murphy III v. Lamberti (Fla. 4th DCA 2011) - condition of bond breached (this is a very short case, worth clicking on the link)

    I'm looking for one I found where the state screwed up and the court granted a pretrial release.  The same day, the state moved for pretrial detention, and was shot down because it could not show that conditions had changed so that where defendant previously not a flight risk, risk to judicial process, or risk to community; suddenly was.

    Anyway, two separate issues in our debate.  One is whether giving defendant the right to request a bail hearing is sufficient basis to bypass 907.046 and hold defendant without bail; and the other is what conditions justify hailing a pretrial released defendant before the court.

    I think a "hold on no bond status" order requires the court to conform with 907.046, whether or not is says "until trial."

    Parent

    I'm curious (5.00 / 2) (#57)
    by expy on Tue Jun 26, 2012 at 06:15:43 AM EST
    from your statement,
    I've only read half a dozen or so cases, and my memory isn't all that hot,

    What's your legal experience? Because you kind of write like someone who has legal knowledge, but not the down-in-the-trenches experience of a criminal trial lawyer.

    The fact that you can't find an appellate case on point doesn't mean that something unusual has happened.  It just means that no one has bothered to appeal a similar issue before. I'm sure that defendants have bails revoked for all sorts of reasons. The first step toward resolving that situation is to bring a renewed application for bail -- it is only when the court denies bail after that renewed application that there is even a determination that is subject to appeal.

    Zimmerman's case is unusual because he came into a large sum of donated money very quickly. That's not going to happen to the average criminal defendant, so it's hard for me to imagine other circumstances where a defendant might try to conceal those sort of assets.  

    On the other hand, I think its safe to assume that the reason the Florida legislature passed the revocation statute in the first place that specified that consequences for withholding information from the court is that they must have seen a need to address that particular problem.

    I figure the Judge is going to set bail, and the bail is going to be higher than before. How much higher, I don't know.  

    O'Mara told the court that Zimmerman can't get the money that's in trust directly right now, but he didn't say that the trustee lacked the power to use it for bond.  So the court knows that there's a fund available to support an increased bond.

    Parent

    My legal experience is not relevant (2.00 / 1) (#59)
    by cboldt on Tue Jun 26, 2012 at 07:19:33 AM EST
    Neither is my style of writing here, in an informal setting, where the audience is mostly non-lawyers.

    I don't disagree that Zimmerman's case is unusual, and I don't disagree that an error below is essential condition precedent to filing an appeal.  The question we are debating is whether or not Lester order comports with the controlling legal authority.

    Stepping back to the general question of bond revocation, post pretrial release, I can imagine lies by defendant that justify revocation of bond and imposition of a no bond order.  For example, claiming to live in Florida and having ties there, when in fact defendant lives in another state, or even in another country.  Totally non-financial, and changes the application of law - trivially easy to find "flight risk" in that situation.

    You are correct that there are all sorts of cases where judges have revoked bail, and that order has been appealed.  The Paul case is an example, I linked to a couple others on this page.  In every case, the appellate court directed the court below to apply 907.041.  In short, I have found on-point appellate cases, although I agree that none of them deal with what the court finds to be a material misrepresentation of financial status in a pretrial release hearing.

    You are a defense lawyer, and I find it interesting that you don't directly counter the cites and argument of your opponent in argument.  I assume that you too handle motions differently in court, and that in a trial or appeal setting, you argue from legal authority.

    I'm amenable to persuasion.  Where is the exception in the law that covers a defendant who obtains pretrial release, to be denied bail absent a finding a flight risk, danger to community, or other critera contained in 907.041?

    Parent

    The reason I asked (5.00 / 1) (#79)
    by expy on Tue Jun 26, 2012 at 05:51:27 PM EST
    is because it seems your "certainty" on what is permissible or legal is very much at odds with my experience with routine day-to-day practice.

    For example, you also posted above that you took issue with O'Mara's failure to raise these issues or object.  Did it ever occur to you that he didn't object because he knew it was fruitless, and he would lose? (I am critical at O'Mara's  choices too, but for very different reasons)

    I have been very clear in saying that I do NOT have experience in Florida -- my experience is wholly ins states that are located west of the Mississippi. But bail revocation is a very common occurrence -- I would think that any active criminal defense attorney would pretty much know the routine of the steps for reinstatement - both in terms of dealing with the courts and also in terms of the practical end of things with the bondsman.

    Typically bails are revoked reasons other than lying about finances, but judges really have a lot of discretion. The general standard in attempting to appeal a trial court's determination is whether there was an abuse of discretion. In a close case, the appellate court is going to defer to the trial court.

    I'm using the term 'appeal' usefully because it's not an issue that would come up after trial & conviction.  The bail/denial of bail issues would typically be raised by way of writ of mandate or habeas corpus -- or whatever procedure Florida has for the appeal of a bail determination.  

    The very FIRST thing that has to be done before a person can appeal, of course, is to raise the issue in the trial court. Because O'Mara did not raise an objection to the court's power to revoke bail, and a hearing has not yet taken place on the bond, from a procedural standpoint there is no issue.  An appeal court would be powerless to do anything.

    A law student might approach the problem as an exam question:  "The law says that the judge can do X or Y. The judge did Z. Did the judge have power to do Z? Discuss."

    But because my perspective comes from experience, I'm not looking at the theoretical aspects. Lawyers and judges disagree about what the law allows all the time -- that's why we have appellate courts. But the issue you are focusing on has long since been waived by the defense lawyer.

     

    Parent

    Now we know the quality of your legal chops (2.00 / 2) (#82)
    by cboldt on Tue Jun 26, 2012 at 06:30:12 PM EST
    You're an experienced lawyer, and you just spent about 6 paragraphs saying you don't know how the law works in Florida, and then not responding to the question of whether or not Lester's order comports with the relevant legal authority.


    Parent
    That's the metric for "legal chops"? (5.00 / 1) (#85)
    by Yman on Tue Jun 26, 2012 at 06:56:35 PM EST
    Just curious ... isn't that better than someone - who is not an experienced criminal attorney - spending waaaaaaaaayyyy more than 6 paragraphs pretending they know that Lester's order does not "comport with the relevant legal authority"?

    Parent
    I'll object to that (none / 0) (#97)
    by cboldt on Tue Jun 26, 2012 at 10:18:46 PM EST
    Your post contains nothing but unsupported insult, and should be deleted.

    Parent
    Whatever (5.00 / 1) (#98)
    by Yman on Tue Jun 26, 2012 at 10:46:35 PM EST
    It's the flip-side of your response to expy.  

    Surely, your response about his/her "legal chops" wasn't intended as an insult ...

    As for "unsupported", I'm not sure what you mean.  Unless, of course, you're not claiming that Lester's order does not "comport with the relevant legal authority", ... or you are an experienced criminal attorney.

    Parent

    Yman - That is false - your post should be deleted (none / 0) (#99)
    by cboldt on Tue Jun 26, 2012 at 11:13:25 PM EST
    My remarks to Expy were either substantive to the question of whether or not Lester's revocation comports with FL law, or pointing out that Expy had not addressed the contentions I had made in support of my conclusion.  An experience lawyer showing good legal chops will address the substance of the argument.  I'll give Expy some credit, but his position over the course of the argument is internally inconsistent, and I'm not referring to his switching to "it's irrelevant" for the win.  That he hasn't articulated legal basis for rejecting my contention that Lester's order does not comport with the law speaks for itself.  There is no need for me to rebut a non-argument, and really no logical way to rebut it except to point out it isn't responsive.

    As for your remark that I object to, it contains remarks about the volume of my posts and about my work experience / qualifications.  It contains no remark about the subject under debate.  You have no evidence to support your personal statements about my work experience / qualifications.  That's what "unsupported" means.

    I wouldn't have objected to your post if it contained both an insult and a substantive, on point argument.  You post added nothing beyond revealing your sentiment toward whatever you perceive "me" to be.

    My remark abut Expy's legal chops could be taken as an insult, or as a challenge to put up a substantive argument in lieu of a diversion.  To be honest, they were meant as an insult to his argument.  I also find his posts to be prolix and condescending.

    Parent

    Right back at'cha (5.00 / 1) (#100)
    by Yman on Wed Jun 27, 2012 at 07:23:32 AM EST
    Actually, putting aside the fact that expy did give several substantive answers (just answers that you refuse to accept), I do have a basis for my response.  It's out there for anyone with a browser and a search engine.

    Parent
    Substantive does not equal responsive (none / 0) (#101)
    by cboldt on Wed Jun 27, 2012 at 07:54:43 AM EST
    The answers that Expy gave were not responsive, they were diversionary.  I asked whether or not 907.041 controlled, and he pointed at what Lester said, then asserted that absence of O'Mara objection renders the issue moot.  Neither of those lines of discussion (substantive though they may be) address my contentions that Lester is bound to apply 907.041 and Paul in support of an order of detention without bail; or that Lester did not apply 907.041 or Paul.

    I've made my case both in debate with you and now in debate with expy.  I've provided and linked to case law that justifies rejection of your implied position that my conclusion is in error.  Neither of you have managed to compose a refutation that supports the implied conclusion that I am in error.

    Just because you and expy refuse to address the argument I offered, with contrary legal authority, doesn't make my conclusions about Lester's order wrong.

    isn't [not responding to the question of whether or not Lester's order comports with the relevant legal authority] better than someone spending waaaaaaaaayyyy more than 6 paragraphs pretending they know that Lester's order does not "comport with the relevant legal authority"?

    Citation to case law is not "pretending to know." Responding to the question without refuting the case law cited or showing why it doesn't apply does not advance the argument.

    It seems to me your argument reduces to "expy has trail lawyer experience, you don't, so he's right, and you are wrong."

    I've concluded that neither one of you is willing to conduct a good faith discussion.

    Parent

    My point is that the "authority" (5.00 / 1) (#86)
    by expy on Tue Jun 26, 2012 at 06:59:28 PM EST
    is irrelevant, given the fact that the defense has conceded the authority up until now.

    I'm not going to waste my time reading cases to debate a theoretical issue that does not exist in this case. I do have a day job.

    I'm trying to share some of my experience simply because from my view, Zimmerman has pretty much been treated better than the vast majority of people going through the criminal justice system, starting from his release on the night of the shooting. (Which may or may not be a result of Florida's unique SYG statute).  

    O'Mara (in my opinion) has made some huge mistakes, but not the ones you think he has. He would be spinning his wheels and making things worse for his client to challenge the judge's authority to revoke bail, given the factual setting.


    Parent

    Why grant bail? (none / 0) (#61)
    by cboldt on Tue Jun 26, 2012 at 08:12:43 AM EST
    If I understand Florida law relating to denial of bail, and if Lester was justified in denying bail on June 1, then Lester has found Zimmerman to be a flight risk, danger to the community, or risk to the judicial process.  That would be an implicit finding, as none of those findings is expressly stated; but a finding within 907.041 is required to support revocation of bond and imposition of holding without bail, two actions that Lester took.

    Given then, that Lester has found Zimmerman to pose a flight risk, or danger to community, or risk to the judicial process, why would Lester grant bond?  If he's justified in revocation, the circumstances haven't changed relative to that revocation.  The "lie" of April 20 is done, and can't be undone.  If the "lie" represents a finding that justifies denial of bail, that is, if the order of June 11 is well taken, then Lester should stick to his guns; and I think, under FL law, he is obliged to stick to his guns.

    Parent

    As of the date of revocation (none / 0) (#80)
    by expy on Tue Jun 26, 2012 at 06:09:32 PM EST
    Lester had reason to believe Zimmerman to be a flight risk.

    if Lester was justified in denying bail on June 1, then Lester has found Zimmerman to be a flight risk

    The prosecution, in its motion, had shown that Zimmerman had concealed the existence of a 2nd passport, and while in jail was actively moving money into private accounts maintained by various family members.  That could easily be seen as laying the groundwork for fleeing the country if and when it seemed prudent to do so.  (It's not all that rare for defendants to make all of their early, routine court appearances but fail to show up on the day of trial).

    So those facts by themselves are enough of an indication of flight risk for the judge to take action.  

    Zimmerman has a due process right to present his side of the story. As I've noted, O'Mara could have insisted that he be given that opportunity very promptly,, and chose not to.  

    I think O'Mara's telling the court about the money being held and managed by a trustee is a way to alleviate those "flight risk" concerns, even more than to address amounts available for bail. That is, the trustee is quite likely to authorize payment of funds to a bondsman -- but the trustee isn't going to be wiring funds to Aruba to help the defendant abscond.

    Parent

    Didn't the judge accept... (5.00 / 1) (#89)
    by citizenjeff on Tue Jun 26, 2012 at 07:25:36 PM EST
    ...O'Mara's explanation about the second passport? Why, then, do you see it as the basis for concluding Zimmerman is a flight risk?

    Parent
    More of a factor than a basis (5.00 / 1) (#92)
    by expy on Tue Jun 26, 2012 at 07:46:38 PM EST
    I'm just saying that is something the Judge could have cited as a consideration to support flight risk.

    Keep in mind that a Judge is writing his order to justify the decision he has already made, not the other way around. That is, once the Judge decided to revoke bail, when he got around to writing an order, he would write down reasons supporting his decision.  He could have considered various factors, but might choose to write the ones that he feels are most important, or that are an ongoing concern for him.

    The point is... if O'Mara had made a big deal of objecting to the revocation at the court hearing, maybe by telling the judge, "you can raise bond but you can't legally revoke it" -- then, as a practitioner, I think that the prosecution would have responded by articulating the "flight risk" argument and the Judge might very well have made a bigger deal of the passport.  

    But because O'Mara took a more conciliatory approach (oops! big mistake! we're so sorry, it will never happen again) -- the Judge probably then narrowed his focus to the issue that still concerned him.

    And I'm saying the whole moving-money-around thing raises a potential flight risk concern, because its the kind of thing someone might to to set the stage for something like that. It just looks bad, especially with the multiple bank accounts.

    I'm pretty sure that O'Mara understands that. That may also be why he wants the bondsman to show up-- because maybe the bondsman can give the judge further assurance that his agency will make sure that Zimmerman shows up.    

    Parent

    I'd just add (none / 0) (#93)
    by expy on Tue Jun 26, 2012 at 08:01:11 PM EST
    that if Zimmerman had showed up to court on the day the bond was revoked, there might have been a very different outcome. He would have been there to respond to questions, either directly or through counsel (to avoid possible 5th amendment concerns) - and under those circumstances O'Mara would have been in a much better position to simply agree to a raised bond amount or suggested/agreed to additional bond supervision conditions such as a reporting requirement, and request time for Zimmerman to come up with the extra funds.  


    Parent
    The meaning of "Apply 907.041" (none / 0) (#65)
    by cboldt on Tue Jun 26, 2012 at 09:47:02 AM EST
    I said that in every case, the appeal court ordered the trial court to apply 907.041.  That is an incomplete statement of the appellate court rulings.  Also in each case where the writ was granted, the appellate court found that the trial court erred in imposing the detention.  In other words, the rulings weren't "temporary detention was justified, now perform the actions required by 907.041."  Picking a few ...

    The statute does not allow the trial court to deny release solely on a finding that the defendant violated a condition of bond. Buhbut v. Bieluch, 835 So.2d 1222,1223 (Fla. 4th DCA 2003).

    Murphy III v. Lamberti (Fla. 4th DCA 2011)

    Petitioner asserts that the trial court erred in granting the State's motion to revoke bond ... We agree and grant the writ.

    Metzger v. Cochran (Fla. 4th DCA 1997)

    We conclude that the detention order was unlawful.

    Bush v. State (Fla. 1st DCA 2011) [This is the case where the state agreed to pretrial release, then changed its mind the same day]

    If I'm reading your contention correctly, you find that O'Mara would lose an appeal taken on Lester's June 11 order, that he has to wait until Lester denies bail again, before we can find that Lester erred.

    Parent

    there are two statutes (none / 0) (#33)
    by Jeralyn on Mon Jun 25, 2012 at 10:21:50 PM EST
    pre trial release and pre trial detention. See my post here with the cases discussing the difference.

    Parent
    907.041 is what? (none / 0) (#34)
    by cboldt on Mon Jun 25, 2012 at 10:30:17 PM EST
    From FN14 of Paul ...

    Accordingly, the Legislature's enactment of the 2000 amendments supports our holding in this case that section 907.041 applies to revocation of an existing bond.

    907.041 Pretrial detention and release.

    Did Lester revoke an existing bond?  If the answer is "yes," the next question is "Did Lester apply section 907.041 to justify that revocation?"

    Parent

    If I were in Zimmerman's place... (5.00 / 2) (#18)
    by unitron on Mon Jun 25, 2012 at 05:46:03 PM EST
    ...I'd have moved that money out of PayPal as quickly as possible.

    Before they decided to freeze it for whatever BS reason they could come up with.

    Considering that his and his wife's income dropped to zero, I'd say keeping his debts paid up counts as a living expense.

    How does the state get to pretend they weren't told about the websites and the donations about which they were asking Shellie Zimmerman in court at the bond hearing?

    And how was O'Mara the only person in the US not to know about it?


    Good Advice on Paypal (none / 0) (#29)
    by Lina Inverse on Mon Jun 25, 2012 at 09:21:07 PM EST
    Paypal has succeeded when all others failed by superior fraud detection.  This obviously has to be tuned for false positives.

    Paypal's fraud detection system is notorious for pinging on charities that are suddenly set up and that receive a large influx of money.  They then give you two choices, besides going to the media, of course: wait 180 days for your money, or have all the donations returned.  BTW, Paypal takes their foreign currency conversion vig going both ways in the latter case.

    So, yes, pulling that money immediately out of Paypal was a very good idea, although in this case the Zimmermans could have probably gotten problems fixed through the media.

    Parent

    Media editing GZ non-emergeny call again! (5.00 / 1) (#37)
    by Redbrow on Mon Jun 25, 2012 at 10:53:03 PM EST
    This time it is Geraldo on FOX. The whole segment is biased, thanks to Crump, but the editing of the call is entirely the producers fault. You'd think they would have learned a lesson from the NBC edit fiasco.

    Notice at at 2:45, they edited out GZ saying "OK" in response to "we don't need you to do that." The also edited GZ saying 'OK' out of the printed transcript they display on screen.

    Here is Jeralyn's transcript for reference:
    Dispatcher: Are you following him?
    Zimmerman: Yeah Dispatcher:
    Ok, we don't need you to do that.
    Zimmerman: Ok
    Dispatcher: Alright sir what is your name?

    sorry, I forgot (none / 0) (#38)
    by Redbrow on Mon Jun 25, 2012 at 10:56:56 PM EST
    the link to Jeralyn's transcript. I also messed up the format due to copy/past from pdf.

    Dispatcher: Are you following him?
    Zimmerman: Yeah
    Dispatcher: Ok, we don't need you to do that.
    Zimmerman: Ok
    Dispatcher: Alright sir what is your name?

    Parent

    Given that the judge (5.00 / 1) (#43)
    by NYShooter on Tue Jun 26, 2012 at 12:00:35 AM EST
    had already ruled that he was "satisfied" with the disposition of the passport issue why would O'Mara want to dredge up that item again?


    What? (5.00 / 2) (#84)
    by JamTowzy on Tue Jun 26, 2012 at 06:39:25 PM EST
    In my book, the question "Did you confront the guy you shot?" is harder and much more pertinent than the overblown mortal sin of following from afar.

    that comment was deleted as (none / 0) (#95)
    by Jeralyn on Tue Jun 26, 2012 at 09:44:57 PM EST
    for being misleading on the issues in the case.

    Parent
    Amount of bond and transfer of fund (none / 0) (#1)
    by Michael Masinter on Mon Jun 25, 2012 at 01:53:20 PM EST
    Here's a question to which I do not know the answer. Assuming as I do that Zimmerman is still constitutionally entitled to release on bond, can the court include the value of the earlier internet fund no longer under his control in setting a new bond, reasoning that the later transfer of the fund to a trustee after his conceded failure to apprise the court of its scope and availability was a fraudulent transfer designed to put the fund beyond the reach of the court for bond consideration?

    Then (none / 0) (#2)
    by whitecap333 on Mon Jun 25, 2012 at 02:37:00 PM EST
    you would have to deliver yourself of a rationale for supposing the fund was within your "reach" to begin with.  The donations were made, in good faith, to be applied to the costs of financing a defense and to living expenses.  Obviously, if you set the amount of the bond so high that every dollar in donations is consumed by the amount of bail, you would be leaving Zimmerman in the same financial position, in regard to legal fees, as he would be in without the donations.  It would be tantamount to mocking both Zimmerman and his donors.  You might even leave Zimmerman in worse condition since, as I understand it, the donations are taxable income.  Any way you cut it, to the extent you increase the amount of the bond on the basis of the fund, you would be imposing a judicial penalty on donations.  And sure--Zimmerman would eventually get it back--when he no longer needs it.

    Parent
    Forbes (none / 0) (#12)
    by Dilbert By Day on Mon Jun 25, 2012 at 03:59:29 PM EST
    published an illuminating analysis of the tax liabilities associated with Zimmerman's donation fund.

    With a cash gift, there is no federal income tax consequence to the recipient. Cash gifts include checks and payments received through third party processors like PayPal. So the Zimmermans won't have to report that cash to the IRS come next April.

    But what about the folks who made a donation? What are the tax consequences to them? - continues

    Motion for Bond says:

    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.

    Does this admission by the defense expose GZ to a charge of perjury, or contempt? Thanks.

    Parent

    Gifts are not taxable (none / 0) (#13)
    by J Upchurch on Mon Jun 25, 2012 at 03:59:46 PM EST
    I was curious about this question myself and my research is that contributions to his defense fund are gifts and not taxable.

    Parent
    If they're big enough... (none / 0) (#17)
    by unitron on Mon Jun 25, 2012 at 05:37:39 PM EST
    ...then the givER pays taxes, not the givEE.

    Although I suppose they could form a PAC and get around even that.

    Parent

    situation is different (none / 0) (#5)
    by Philly on Mon Jun 25, 2012 at 03:05:05 PM EST
    Keep in mind that GZ did not provide all the donations to the fund set up by O'Mara. A significant portion of the money GZ received was claimed to have been used to pay off debts.  GZ would be wise to have a detailed accounting of where that money went, lest he be accused of hiding it.

    Keep in mind also that GZ's financial situation today is arguably better than it was at the time of the first bond hearing.  He purportedly has access to $20,000 cash for ongoing living expenses that he didn't have before.


    Parent

    Motion for pretrial detention (none / 0) (#7)
    by MJW on Mon Jun 25, 2012 at 03:13:18 PM EST
    Will the state file a motion for pretrial detention under rule 3.132?  As far as I can see by the court record, they haven't yet done so.  It apparently must be a written motion, since it must be signed by the state attorney or an assistant.

    Though many refer to the bond hearing as an Arthur hearing, I don't think it was.  The purpose of an Arthur hearing is to decide if pretrial detention is permitted because proof of guilt is evident or the presumption is great.  Until the state files a motion for pretrial detention, the judge cannot order pretrial detention, except when the defendant commits another crime while free on bail.

    Judge Lester doesn't seem to realize this, based on his claim the granting bond was discretionary.  I don't know exactly what the state and O'Mara realize.

    Good question (none / 0) (#8)
    by cboldt on Mon Jun 25, 2012 at 03:32:50 PM EST
    The June 1 motion was not styled as "Motion for Pretrial Detention," but it did claim to invoke Rule 3.132.  It didn't argue from the points in Rule 3.132, but it did request a revocation of bail.  As for the formality of being signed by SA or assistant, it was.

    I disagree that the April 20 hearing was mindless of Arthur.  The pretrial release rule, Rule 3.131(a), embodies the Proof Evident measure of evidence.

    O'Mara seems to realize the state hasn't established Proof Evident, because he asserts that the Court is bound, now, by Paul.

    Will the state file a Motion for Pretrial Detention?  I wonder why it didn't do so either before April 20, or, failing that, on June 1st.  Failure to do so can't be for want of getting and keeping Zimmerman behind bars, so the reason is either strategic, or incompetence.  On the strategic justification, the state seems averse to losing a substantive battle this early in the process.  The state may know it filed a meritless case (or more charitably, weak case), but the longer it takes for that to be resolved by the court, the better.

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    May I ask (none / 0) (#47)
    by DebFrmHell on Tue Jun 26, 2012 at 04:18:49 AM EST
    a couple of questions?  How can it be a pretrial detention if there is no trial date even set?  If GZ gets held over would it be until the SYG hearing?  And then switch to Pretrial detention?  Or a new Motion for Bond?

    It seems to be all set on a Proof of Evidence.

    I have read thru this debate a couple of times and I can honestly say I get more confused every time.

    Why didn't MOM address the issue of the lack of due process when his client was refused the opportunity to attend the Motion to Revoke hearing?  OM was put in the position of speaking "on the fly" for his client when his client, given the opportunity, could have addressed the issues himself.

    I am sorry.  Just trying to get a better understanding.

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    Confusion over a few words (none / 0) (#50)
    by cboldt on Tue Jun 26, 2012 at 04:52:08 AM EST
    MJW finds that pretrial detention is a no bail condition that runs to trial, and that is so even if the trial date is indefinite.  Defendant has resort to "speedy trial" provisions, for what they might be worth.  The fact that trial date is indefinite is of no matter.  The words "Defendant is ordered to be held in detention without bail, until trial" takes care of it.

    If the state meets Proof Evident, defendant is not entitled to bail as a matter of right, but the court can grant it anyway.  That's the Arthur case.

    If the state does not meet Proof Evident, defendant is entitled to bail as a matter of right.  But, the state can request defendant to be held with bond, and be denied bond.  In this circumstance, the court must find the detention to be justified under 907.046; and must also follow the procedure set out in 3.132.

    O'Mara did address the issue at the hearing.  He said he objected to it.  Beyond that, he's milquetoast about defending his client's right to be free on bail.  There has been plenty of speculation as to why.

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    907.046 Aaaargh!!!! (none / 0) (#55)
    by cboldt on Tue Jun 26, 2012 at 05:51:33 AM EST
    I used that statutory reference all over this page, and it is the wrong statute.  Wherever you see a 907.046, substitute 907.041.

    Sorry for the confusion.

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    Necessity of motion (none / 0) (#11)
    by MJW on Mon Jun 25, 2012 at 03:53:31 PM EST
    Ho v. State, 929 So. 2d 1155 - Fla: Dist. Court of Appeals, 5th Dist. 2006

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    Can a lawyer (none / 0) (#83)
    by DebFrmHell on Tue Jun 26, 2012 at 06:34:38 PM EST
    who may have suspicions that his client is going to jet, still file Motions on his clients behalf requesting bond?  Just suspicions, mind you, nothing evidenciary.  The attorney is doing what he is getting paid for by filing such request.

    Ho it appears wasn't such a noble soul while out on bond.  He committed another crime, implied through taped recordings that he was here to stay yet still managed to get picked up at an airport while attempting to leave.

    Nothing about Ho remotely reminds me of Zimmerman.

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    Thin ice (none / 0) (#87)
    by expy on Tue Jun 26, 2012 at 07:17:49 PM EST
    Yes a lawyer who suspects that his client might be planning to run can seek bond for his client ... but that lawyer would have to be very careful that the bond motion wasn't premised on false information.

    If, hypothetically, Zimmerman had not turned over his passport and funds to O'Mara -- but if instead, immediately after his release, he had used the passport to leave the country, taking his money with him....

    Then, in that hypothetical, O'Mara would have been in very deep trouble, because he would have made false representations to the court and presented misleading testimony of a witness. "I didn't know" isn't much of an excuse, because attorneys are supposed to properly investigate these sort of things before putting up evidence.

    Since your hypothetical involves a lawyer who has suspicions -- then in that instance the lawyer clearly would be on notice of his need to carefully investigate the facts before making representations to the court.  (My personal opinion is that the lawyer should carefully investigate facts before putting on witnesses in any case, suspicions or not ... a lawyer who is routinely thorough with all his clients doesn't have to worry about his own biases getting in the way of the quality of his representation)

    On the other hand, there would be nothing wrong with the lawyer making true representations in a bail application ("my client turned himself in, he cooperated with police, he has lived in the community X years, he has family here" -- etc.)  

    The ethical distinction is between acting on behalf of a client and crossing the line to become an abettor of ongoing criminal activity.  

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    The point of citing Ho (none / 0) (#90)
    by MJW on Tue Jun 26, 2012 at 07:40:07 PM EST
    is to show that the court can't hold a defendant without bail unless the state files a motion for pretrial detention, or the defendant commits another crime while on bail.  Judge Lester claimed allowing bail for Zimmerman was discretionary. I believe he's wrong, since I haven't seen anything showing the state filed the motion.

    I think it would be better for Zimmerman if the state had filed the motion.  If they had, then I think the bond hearing was the Arthur, and the court must base it's conclusions on the strength of the evidence presented at the hearing.  If the state hasn't already filed a motion for pretrial detention, I think that possibly they could file the motion and get an Arthur hearing.

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    Thank you (none / 0) (#94)
    by DebFrmHell on Tue Jun 26, 2012 at 08:05:49 PM EST
    for the clarification.

    I seriously do not know how you all keep these citings / statutes straight.  I admire and respect the work you do.

    If they had, then I think the bond hearing was the Arthur, and the court must base it's conclusions on the strength of the evidence presented at the hearing.

    Could Friday's hearing be the Arthur hearing?  Much more evidence has been released that certainly wasn't a part of the orginal Probable Cause hearing.

    TIA

    You "NY Times crossword-in-ink" types dazzle me!

    8-)

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    Motion for pretrial detention required (none / 0) (#96)
    by MJW on Tue Jun 26, 2012 at 10:09:52 PM EST
    Unless the state files a motion for pretrial detention prior to the hearing, it shouldn't be the Arthur hearing.  I'm uncertain whether the state can even file the motion for pretrial detention at this time, unless they have new facts, not known at the time of the first bond hearing, that would provide a significantly stronger case that "the proof of guilt is evident or the presumption great."  A case cboldt mentioned earlier, Bush v. State, along with various cases it cites, requires that a modification of bond conditions be based on information not available to the state at the time of the original hearing.  Though I'm sure the state would argue the alleged misrepresentations at the bond hearing are new information, I think a good case can be made that in order to support filing a motion for pretrial detention predicated on the notion that the proof of guilt is evident or the presumption great, the state must have new information to support that conclusion.

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    no mention of hidden passport in new motion (none / 0) (#39)
    by willisnewton on Mon Jun 25, 2012 at 10:57:19 PM EST
    The judge did not look lightly upon the hidden passport in his decision to revoke bond.  O'Mara's new motion doesn't mention this issue or any responsibility that GZ may have about his having retained a valid passport and turned in an invalid passport to the court at the time he made bond.  

    This may be a mistake on the part of defense counsel to pretend to have no need to address this issue.  Yes, the judge now knows that by virtue of the state department's action the issue became defused, but still the actions that displeased the court should be addressed in the motion just as the actions that hid the money form the court are addressed in the motion.  

    Does GZ "accept responsibility" for the hidden passport issue or not?  

    No Sweat (none / 0) (#51)
    by whitecap333 on Tue Jun 26, 2012 at 05:05:37 AM EST
    I'm sure Judge Lester will have little difficulty reasoning his way to the conclusion that bail should be set at the amount that would have been required on 4/20, had George not made like a potted palm.  That will probably leave George with the choice of remaining in the slammer or depleting his fund.  Wonder how long it will be before the list of donors is leaked?  

    I have no respect for any of these so-called pros. (5.00 / 1) (#62)
    by JamTowzy on Tue Jun 26, 2012 at 08:20:41 AM EST
    IANAL obviously, but why couldn't Lester (I refuse to use a title anymore) separate the two issues he was addressing (deception and bond) and handle them with two different cures? Have the lies prosecuted (or with a contempt order), and then attack the issue of the bond?

    What is strange is that all of the bond issues had been cured in the interim -- not just cured but improved, and with full notification and public scrutiny. If the goal was to punish and/or assert court control, then wasn't the bond the wrong tool with which to throw a tantrum.

    One more thing. Say you are a defendant watching a bond hearing proceed. Say that you are waiting for one side or the other address a key question that would clarify everything. Say that your expectations are not met, and the key question is never asked, and the hearing ends abruptly. You're stunned that some obvious information was mishandled. What is your recourse? Shouting? How is unfamiliarity with the process, shoddiness of the questioning, and the rushed proceeding suddenly your fault and an indicator of your honesty?

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    It's interesting to me as a layman that... (none / 0) (#63)
    by deanno on Tue Jun 26, 2012 at 08:34:31 AM EST
    on TV shows BOTH George and Shellie are described as liars b/c of the bond hearing--both claiming they were indigent abd "lying" about it.  Yet Shellie was cited for perjury and George not?

    George did not testify under oath (none / 0) (#64)
    by jbindc on Tue Jun 26, 2012 at 09:34:15 AM EST
    ergo, he cannot be charged with perjury.

    An argument can be made that if he signed pre-detention papers that were patently false and misleading, he might be able to be charged with perjury, but since perjury is extremely hard to prove, the prosecution might have chalked this up to trial strategy.

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    I guess my memory is faulty. (none / 0) (#66)
    by deanno on Tue Jun 26, 2012 at 10:00:01 AM EST
    But I thought that he was under oath at the bond hearing on 4/20?

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    George did not testify as to finances under oath (none / 0) (#68)
    by Kyreth on Tue Jun 26, 2012 at 10:11:37 AM EST
    he only made his apology, and then had to answer some cross examination on that.

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    Why Charge Zimmerman Now? (none / 0) (#67)
    by J Upchurch on Tue Jun 26, 2012 at 10:05:13 AM EST
    The prosecution can come back with Subornation of Perjury, Witness Tampering and Conspiracy if they lose on the murder charge.

    Parent
    The one testifying... (none / 0) (#71)
    by heidelja on Tue Jun 26, 2012 at 12:00:16 PM EST
    ...was the one charged with perjury.

    Now, do you want to hear an opinion why no one should have been charged and why, if convicted, it would be overturned on appeal? Likely this is not "on topic" now, but simply, it is a case of how strongly SZ wants to fight "perjury" and her attorney's fees to prove she did not legally do so given all the public hoopla that she certainly did.

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    Prosecution is releasing (none / 0) (#69)
    by DizzyMissL on Tue Jun 26, 2012 at 10:23:01 AM EST
    more discovery today at 1:00.

    Not much new in the state's release (none / 0) (#72)
    by cboldt on Tue Jun 26, 2012 at 01:48:17 PM EST
    Police reports now omit the redaction of investigator summary of Zimmerman's account.  Previously redacted on the state's theory that Zimmerman's account is a confession of guilt.

    Added the Stress Test result.  "No deception indicated," and "The examinee has told substantially the compete truth in regards to this examination."

    The stated wanted the Stress Test to be kept from the public eye too, on account it could comprise the presumed innocent defendant's right to a fair trial; and the test isn't admissible in court.

    What is the state's evidence of depraved mind?

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    "ommiting the redaction" (none / 0) (#74)
    by heidelja on Tue Jun 26, 2012 at 01:51:36 PM EST
    ...is an oxymoron isn't it? (LOL)

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    It seemed like a good idea at the time (none / 0) (#75)
    by cboldt on Tue Jun 26, 2012 at 01:53:48 PM EST
    More unredacted?

    Less redacted maybe.

    Not much of a wordsmith when on the fly, that's obvious!

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    Aha ... (none / 0) (#77)
    by cboldt on Tue Jun 26, 2012 at 01:55:48 PM EST
    The public release now shows (or discloses) investigator summaries of Zimmerman's account.  In earlier releases, that material was redacted.

    More coffee.  More RedBull.

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    link... (none / 0) (#73)
    by heidelja on Tue Jun 26, 2012 at 01:48:24 PM EST
    Will the current PayPal balance (none / 0) (#70)
    by IrishGerard on Tue Jun 26, 2012 at 11:40:06 AM EST
     be a factor in setting the Bond amount?

    Now that the account is secure and zimmerman, ostensibly, has no access to these funds, can they still be used as a determinative factor?
    I assume the current balance is significantly larger than 150K.

    It's painfully obvious that the State's case against george zimmerman, contrary to previous assertions, is the probable cause affidavit.
    ergo, flight risk diminished.

    Matt Gutman from ABC tweeted (none / 0) (#88)
    by Redbrow on Tue Jun 26, 2012 at 07:21:02 PM EST
     Serino was the leaker from SPD!

    YancyFaith ‏@YancyFaith
    Was #Serino the leaker?! #TrayvonMartin #Zimmerman @mattgutmanABC ?
    1:58 PM - 26 Jun 12 via Twitter for iPad · Details

    1h Matt Gutman ‏@mattgutmanABC
    @YancyFaith yes he was.
    5:43 PM - 26 Jun 12 via web · Details

    http://twitter.com/#!/mattgutmanABC

    That could explain... (none / 0) (#91)
    by DebFrmHell on Tue Jun 26, 2012 at 07:45:17 PM EST
    why he is now a beat cop at the same rate of pay as a detective (cough) as per his (CS) request.  See Orlando Sentinel.
    LINK

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