The Kel-Tec PF-9

There are different views making the rounds on the blog and forum sites regarding the weapon George Zimmerman used to kill Trayvon Martin. What makes it click, so to speak. To help clarify this and allay future confusion, please watch the two following (short) videos on the Kel-Tec PF-9.

In the first video, the shell casings on the gun eject up and to the right, with not enough force to do any real harm. You can clearly see the casing trajectory and get an idea of the speed of the 7 shots in the clip. This particular gun is a locked-breach, semi-automatic that needs to be primed initially. This would be of significance because it could mean that either Zimmerman always kept it primed, which is unnecessary, or he primed it before encountering Trayvon Martin.

The 9mm pistol has an automatic hammer block safety, which is not the same as a trigger lock safety that stops the trigger from being squeezed. A hammer block is similar to a firing pin block that prevents the hammer from contacting the firing pin by utilizing a safety latch. With the Kel-Tec, there is no lock or latch. What keeps the gun from firing is simple. The hammer can only contact the firing pin by pulling the trigger. Yes, that does mean that it’s always ready to fire as long as the chamber is primed. 

Nit-Picking Nit-Writ

This article will focus on the writ of prohibition filed by George Zimmerman’s defense attorneys, but before I do that, I’ve got to get something off my chest. It’s something I haven’t read much about elsewhere and it’s been bugging me in subtle ways for several months. As far as I’m concerned, it gets to the heart of the matter and why any motion to dismiss (in lieu of SYG) may be problematic for the defense.

I think most people will agree that Zimmerman has given several conflicting accounts of what transpired on February 26, the night Trayvon Martin died by a perfectly placed gunshot wound to the chest.

While his imagination has run wild, there’s one part of his stories that has remained consistent. He prefaces each and every 911/non-emergency call with, “We’ve had some break-ins in my neighborhood…” or words to that effect. Why does he start each one with that statement? Is it an excuse for what may transpire before the police arrive? Cover your butt? Let me tell you why I did it, in other words, by setting up his version du jour. In my opinion, it lays down a foundation as either of two things. Or both.

• He criminally profiled Trayvon, which is what the State claims, and he knows it.
• There was premeditation. By premeditation, I mean, as soon as he spotted the boy, his mind clicked into some sort of mutated high-gear attack mode and that’s when he began to stalk his prey with a vengeance. They always get away. NOT THIS TIME. In my book, it’s malice prepense, or malice aforethought — premeditation, pure and simple. 

Whether he intended to shoot Trayvon or not, he began a deadly game of cat and mouse. A killer cat pseudo-cop. Have gun, will shoot. And he did just that.

§

If you’ve ever seen video footage of babies falling out of chairs, they always look around. If someone is there, they immediately begin to wail and wait for mommy or someone else to run over and comfort them. If no one is there, they shrug it off and continue going about their business, climbing back up for more fun. Of course, I mean this only when there is no real harm done. It’s human nature and we learn at a very early age how to gain sympathy. In George Zimmerman’s case, he’s lived this way all his life. Someone has always been around to comfort him, and he’s forever gotten away with everything. He reminds me so much of Casey Anthony in the sense that her mother, Cindy, let her get away with murder. Don’t ask me if I mean that figuratively or literally. 

Zimmerman handily dismissed the first judge, Jessica Recksiedler, and he’s working on another. To be fair, I believe the motion to remove Recksiedler was Mark O’Mara’s idea, and he seemed to be careful when he constructed the recusal motion, just in case he needed to do it again.

Uh oh, he did it again.

This time, it was due to the “scorching” language the new judge, Kenneth R. Lester, Jr., wrote in an order denying bond after he discovered Zimmerman and his wife lied in court about a large sum of money they had in an account she only acknowledged existed. She denied knowing how much was in it when, in fact, she knew it was more than $130,000. There was also the issue of a tucked away passport they both failed to mention but openly discussed in coded jail house phone calls to each other prior to the initial bond hearing.

Oh my, judges do not like to be lied to, no matter how many inane explanations a defense attorney can conjure up.

Granted, the judge’s wording was quite tough, but did it reach the plateau that separates a legal reprimand from a personal one? It depends on which side of the fence you live on. Actually, it depends on what benches the three appellate judges sit on. That would be judges C. Alan Lawson, Jay P. Cohen and Kerry I. Evander.

After Lester revoked Zimmerman’s bond, the defense filed a new motion to set bond. Of course, the State objected, but in the end, it was granted to the tune of $1,000,000. In his ORDER SETTING BAIL, the judge noted that:

… the Defendant did not offer any explanation of or justification for his deception that was subject to cross examination… As noted, the Defendant spent a substantial portion of the hearing presenting evidence relating to self-defense in an effort to counter the State’s case because, in the initial order, the Court characterized the State’s case as “strong.” Notably, at the initial bond hearing, this Court had only limited evidence; to that point, the State showed the Defendant had shot and killed Trayvon Martin. There was other evidence presented through the probable cause affidavit and the testimony of Dale Gilbreath, an investigator with the State Attorney’s Office, that the Defendant’s actions were imminently dangerous to another and that he acted with a depraved mind regardless of human life. The Defendant certainly indicated through cross-examination that he acted in self-defense, but he put forward no evidence of such. As a consequence, this Court found as a preliminary matter that the evidence against the Defendant was “strong.”

The order further stated that:

Since the June 29, 2012 hearing addressed whether to reinstate bond was not an Arthur hearing, the presentation of evidence attacking the State’s case is of limited relevance at this stage of the proceedings… The actual questions before this Court at this time are: is the Defendant entitled to bail when he presents false testimony at a prior bond hearing and what recourse there is when the Defendant has shown blatant disregard for the judicial sysyem.

In other words, the judge maintained throughout that the reason he stated the evidence against the defendant was strong was because the defense offered up nothing substantial to prove otherwise up to that point, and since the defendant lied to the court, was granting bail the proper decision? The argument that Zimmerman claims in his PETITION FOR WRIT OF PROHIBITION isn’t worth the paper it’s printed on:

There was little evidence regarding the strength of the State’s case at the initial bond hearing other than the bare-bones probable cause affidavit… and the testimony of State Attorney Investigator Dale Gilbreath, a witness called by the defense… Gilbreath acknowledged that the State had no evidence to contradict the conclusion that Trayvon Martin was the aggressor and threw the first punch and no evidence to contest that Mr. Zimmerman was headed back to his car when Mr. Martin attacked him.

Herein lays the problem, whether you see it or not. While the writ of prohibition does make mention of the judge’s strong language, the rest of it is filled with smoke and mirrors. Why, you may ask? Because it doesn’t stick to the matter at hand, as I clearly pointed out above. The writ reads more like a motion for dismissal.

Granted, the judge did make strong statements, but the defense virtually ignored the reasons why. The fact remains, George lied, whether by remaining silent as his wife directly lied to the court, or by proxy. By that, I mean he authorized his wife to lie. Sadly, the writ includes the issue over his wife being charged with perjury. Zimmerman and O’Mara blame it on the judge, who mentioned it in his bond revocation order. Well, she did lie! She did break the law! Is that the judges’s fault? No, but Team Zimmerman thinks so.

Getting back to the June 29 bond hearing, O’Mara deviates from the truth in his writ:

On June 29, 2012 a hearing was held on Mr. Zimmerman’s Motion to Set Reasonable Bond. At this hearing, Mr, Zimmerman presented evidence… in support of his claim of self-defense. This tidal wave of evidence…

A tidal wave of evidence? In his later Order Setting Bail, Judge Lester noted that:

Argument by counsel is not evidence.  See e.g. Wheeler v. State, 311 So. 2d 713 (Fla 4th DCA 1975) (noting that counsel’s opening statement is not evidence).

In plain English, it means that this tidal wave of evidence was nothing more than dirty bath water going down the drain. To clarify, the evidence was presented by O’Mara that day, not by the defendant. Sadly, the defense was aware of that, too, before it wrote the writ. 

ON COURT ETIQUETTE AND ETYMOLOGY

The writ of prohibition states that:

The court chose language in its July 5, 2012 Order to describe the Defendant in ways that reflect the court’s opinion of Mr. Zimmerman’s character as much as his conduct. In its Order, the trial court said, “[u]nder any definition, the Defendant has flouted the system.”

Ouch! Poor Zimmerman threw a pity party over it because:

“Flouted” is defined at Merriam-Webster.com as “to treat with contemptuous disregard; to indulge in scornful behavior.”

In Zimmerman’s case, the court was correct in that assessment. He did flout the system. It continues…

The court went on to say that, “[t]he Defendant has tried to manipulate the system when he has been presented the opportunity to do so”… and again that “… it appears to this Court that the Defendant is manipulating the system to his own benefit”… The court also accused Mr. Zimmerman of showing “blatant disregard for the judicial system.”

The strange thing about the above statement is that every quote by the court is true. Interestingly, one of the defense team’s only ways to counter the court’s language is to camouflage it with claims of what transpired the night of February 26, which really has no bearing on the writ. Meanwhile, the defense laments that:

The court completely ignored Mr. Zimmerman’s voluntary disclosure of the alleged wrongdoing and failed to acknowledge Mr. Zimmerman’s surrender of those donated funds to his lawyer…

The problem is that Zimmerman was caught with his grubby hands in the cookie jar and something tells me he’s always been a sneaky little bastard, pardon my language, who immediately apologizes when he gets caught. See? All better. This is the type of creep who will admit to nothing if he gets away with it, and the more and more we get to know him, the more we recognize it as one of his strongest traits.

I can go on and on citing the examples the defense used in attacking the judge. I can write about harsh language the judge used in his bail order, but consider what he also wrote:

The State notes that his stories changed [with] each retelling, but on the surface he should be deemed to have been cooperative. However, he clearly understood that he was being investigated for committing a homicide and, while he believes that he was justified in his actions, there has been nothing presented which indicates that he was misled into believing that he would not be charged with a crime. Contrary to being betrayed, the Defendant received normal, reasonable treatment and was granted reasonable bail.

That sounds fair to me, but Zimmerman disagrees:

Of particular relevance in the instant case is the legitimacy of Mr. Zimmerman’s belief that the trial court has prejudged his guilt regarding the alleged (by the trial Judge) violation of Florida Statute Section 903.035(3), and how it may carry over to guilt in the underlying second degree murder case.

The way I look at this is no different from any other scolding. Just like parents disciplining their child, they get over it and move on. My God, if parents held grudges, how could they ever treat their children fairly? Even O’Mara admitted when questioned during his writ of prohibition news conference that Judge Lester is a professional and fair. Basically, he contradicted his writ.

I am convinced that this judge can proceed from here and fairly preside over the entire George Zimmerman case. In his ORDER DISMISSING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, Lester made it clear that the DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE was legally insufficient. He further stated that:

The Defendant moved to recuse Judge Recksiedler on the basis of Fla. R. Jud. Admin. 2.330(d)(2), which mandates recusal when a judge is related to an interested party… [The] Defendant also argued language associated with Fla. R. Jud. Admin. 2330(d)(1). However, in an abundance of caution and based on the “totality of the circumstances,” she recused herself. This would indicate that her recusal was, in fact, based upon Fla. R. Jud. Admin. 2.330(d)(1), making this a successive motion under subsection (g) of that rule. Should that be determined, this court is prepared to rule on the facts alleged in support of the motion.

What that means is simple. The lower court is ready to show the higher court what this writ may be all about. Uh huh. Judge shopping.

Zimmerman: Let's Pester Lester. Lester? Make Him Fester

There are two schools of thought now, since the press conference held by George Zimmerman’s attorney, Mark O’Mara. In it, he announced that a writ of prohibition will be filed at the appellate level against Judge Lester. This will stop everything in its tracks, including Zimmerman’s desire to leave Seminole County.

The judge can do one of two things. He can acquiesce by stepping down, washing his hands of the mess, or he can stick to his guns and fight it like he said he would be willing to do in his order denying the recusal motion. Personally, I would fight it, but my reasons are selfish. Make Zimmerman and O’Mara squirm. Delay this mess and keep Zimmerman bottled up in Seminole County — precisely where he doesn’t want to be. After all, O’Mara did say that his client “really has to live as a hermit, unfortunately.”

He said the poor boy is living in fear and running out of money. Great! Add it all up and it’s nowhere near the split second of fear Trayvon Martin felt while staring down the barrel of a gun.

I’m going to go over the writ with a fine-tooth comb when it is published. I will add my findings here or on a new post, but just remember one thing that O’Mara acknowledged when asked. He said that he thinks Lester is a fair judge. That in response when questioned about retribution if he’s denied the writ and remains on the bench. In my opinion, it contradicts the basis of the writ. Which one is he, Mr. O’Mara? Fair or unfair? You speak with forked tongue, methinks.

This is what I wrote on my August 5 post. It explains the writ of prohibition and what happens from this point on:

THE WRIT OF PROHIBITION

According to The Florida Bar Journal, “A writ of prohibition enables an appellate court to prevent a lower tribunal from further exercising jurisdiction in an action. Generally, it cannot be used to remedy an act that has already happened.” Whew! Relief, right? It’s not quite that easy.

While a petition for writ of prohibition “is generally used to challenge the denial of a motion to disqualify the judge of the lower tribunal,” it is also “the appropriate method for forcing a lower tribunal, including an administrative agency, to dismiss a matter for lack of jurisdiction.”

In his order, Judge Lester did leave open the option of argument at the appellate level to establish whether the motion to recuse him was the first or second motion to dismiss the trial judge, but I wouldn’t bet the farm that the higher court would rule Zimmerman’s way. As a matter of fact, that’s not even close to being the crux of the perplexing quandary he’s in. It’s…

FLORIDA SUPREME COURT RULE 9.310.

Let’s just say that, pursuant to Florida Rule of Appellate Procedure 9.310:

RULE 9.310. STAY PENDING REVIEW

(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.

(b) deals with exceptions, such as money judgments and public officials. (c) pertains to bonds, (d) with sureties, and (e) with duration, and none of them apply. But if you move on to (f), and combine it with (a), we hit pay dirt.

(f) Review. Review of orders entered by lower tribunals under this rule shall be by the court on motion.

What’s that mean? It’s quite simple, actually. Remember O’Mara’s words to Pipitone, “seeking a stay of all other matters…”?

That’s right! In order for the defense to seek that stay, they must go through the same court, “which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.” “Review of orders entered by lower tribunals under this rule shall be by the court on motion” actually seals the deal. A stay motion would be filed in Lester’s court and he would have to move to agree to it. Would he? Oh, probably, but in the meantime, like I said, the show must go on. While filing an appeal, the defense can soldier on with their motions and the judge can continue to write orders. Unless. of course, the judge rules on a stay. In which case, poor, poor George will stay in Seminole County for months and months to come, gnawing at the bracelet that will stay on his ankle.

One final thought on this story… Mr. O’Mara said that we are in unity that George Zimmerman’s nose was broken. NO SIR, IT WAS NOT! SHOW ME THE PROOF!

I Can't Get It Out Of My Head

I’ve owned a lot of MGB-GTs over the years. If I could ever love a car like a woman, that would be it. In the early 70s, I owned a red MG like the one in the above picture, wire wheels and all. Late one night, I was cruising home — well above the speed limit — on a winding country road. I was as sober as a judge. Suddenly, I lost control. The car swerved left, flew up an embankment, and flipped several times before coming to a rest in an upright position in a cow pasture. Why none of the wooden fenceposts I took out came through the windshield is beyond me. I saw them, and I distinctly remember watching the windshield pop away, with the open field of dirt and grass coming perilously close to my face as the car rolled. My skull banged into the unpadded headliner like a soccer ball bouncing wildly inside an old Whirlpool dryer. 

When it was over, I climbed out of the now demolished vehicle and hobbled over to the single-lane road, hoping someone would come. It was probably close to midnight. Within minutes, I heard an approaching vehicle and as it neared me, I could see I was, quite literally, drenched in blood all the way down to my knees. With my feet planted firmly on the paved road, I stood my ground, waving my arms in the air. There was no way I was going to let that car get around me. Thank God, they stopped.

Did I think I was going to die? No, I don’t think so. Did I wonder if I was more injured than I felt? The thought probably crossed my mind. What I do know, though, is that I never lost consciousness and I never panicked or overreacted. 

When I got to the hospital, I remember getting a head x-ray at some point. In what order, I can’t say, but it wasn’t until the emergency room doctor examined me that it was discovered what the source of all the blood was — a quarter-inch cut just above my right temple. I may have looked like I was near death, but I wasn’t. Of course, the doctor pulled a few shards of glass out of my scalp and I continued to do so for weeks and weeks after the accident. I was banged up quite a bit, but overall, I was in good shape. No concussion or any significant damage to speak of.

Oh, what I’d give to own another red MGB-GT…

But that’s not my point. I think it’s obvious to everyone that any type of cut to the head will produce a lot of blood, and in most cases, it looks worse than it usually is. That’s my point, and it’s the way I feel about George Zimmerman’s injuries the night of the shooting. He looked worse than he was and it wasn’t even close to how awful I looked the night of my wreck, and to be perfectly honest, the fear of death never crossed my mind. It did the next day, after I saw what was left of my car and I realized how close I came. Luck or God or something was on my side that fateful night and, to this very day, the experience is still quite vivid in my mind.

— § —

Below are a series of photographs of George Zimmerman taken inside the Sanford Police Department the night of the shooting. While I agree there was some sort of scuffle, I do not feel it ever reached a level where it was life-threatening for anyone until the gun was introduced. At the same time, I understand that we all have different pain tolerances. There is also a problem with when to say when. By that, I mean I wouldn’t expect Zimmerman to be beaten to a bloody pulp before retaliating. However, at what point should a person say enough is enough? When is the line drawn?

Does this look like a man with a broken nose? Does the back of his scalp reflect someone whose head was bashed into a sidewalk over a dozen times, as he told Sean Hannity? Is this the face of a man who, moments earlier, was teetering on the edge of death?

These are some of the questions that will arise during the ‘Stand Your Ground’ hearing. While I don’t see the types of injuries Zimmerman said he sustained, what do you think? In my opinion, these pictures reflect what any normal person in Trayvon’s situation would have done on that night. He would have STOOD HIS GROUND and fought for his life. De hombre a hombre. Until the gun was fired.

Statement Regarding Release of Crime Scene Photograph From Sybrina Fulton and Tracy Martin, the Parents of Trayvon Martin

While it was an unfortunate mistake that the crime scene photograph of our son was released, we appreciate the media and the public for not reproducing or publishing the photograph.

Statement in Response to Zimmerman’s Motion For Stand Your Ground Hearing

FROM TRAYVON’S PARENTS AND THEIR DEFENSE TEAM:

Let it be clear on the record, that we feel confident that the unjustified killing of Trayvon Benjamin Martin should and will be decided by a jury.   Many of the legal architects of the Stand Your Ground law have already opined that it does not apply in this case.  A grown man cannot profile and pursue an unarmed child, shoot him in the heart, and then claim stand your ground.  We believe that the killer’s motion will be denied during the Stand Your Ground Hearing, and as justice requires a jury will ultimately decide the fate of a man that killed an innocent child. 

There is only one version of this story that represents that Zimmerman was attacked by Trayvon Martin, and that’s Zimmerman’s self-serving version.  Everyone will agree that the killer’s credibility is clearly questionable.

Trayvon’s parents do not feel that this is a man that feared for his life the night he shot and killed their child, this is a man whose only fear is spending his life in prison.

Statement Regarding Attorney General's Compensation Fund From Family of Trayvon Martin and Their Attorneys

On February 26, 2012, Trayvon Martin was shot and killed by George Zimmerman. George Zimmerman immediately claimed that he killed Trayvon Martin in self-defense.  The Sanford Police Department and the Seminole County State Attorney’s Office did not arrest George Zimmerman for this homicide.  George Zimmerman was viewed by law enforcement and the public in general as the victim while Trayvon Martin, a 17 year old teen walking home from the store armed with nothing more than Arizona Ice Tea and Skittles, was portrayed as a criminal who assaulted George Zimmerman thereby causing his own death. 

On March 29, 2012, in an effort to get the State of Florida to recognize her son as the true victim of this homicidal crime,  Sybrina Fulton, with the help of a concerned friend, filled out initial paperwork applying to the Florida Attorney General for victim’s compensation. At that time George Zimmerman still had not been arrested for this crime.  The Attorney General’s Compensation Fund provides money and support for victims of crimes committed in Florida. Ms. Fulton felt it was important for the State of Florida to recognize her son as the victim in this case in order for justice to be served and for George Zimmerman to be arrested.

In April, George Zimmerman was arrested and Trayvon Martin was officially recognized by the state of Florida as the victim of a crime committed by George Zimmerman.  Since that time, Sybrina Fulton, with her ex-husband, Tracy Martin, has concentrated her efforts on the Trayvon Martin Foundation and raising awareness on the need to stop senseless gun violence.  Sybrina Fulton has not yet completed the very time-consuming paperwork required by the state

As the attorneys for the Estate of Trayvon Martin, we have encouraged Ms. Fulton and Mr. Martin to complete the application for the funds.  These funds are collected from perpetrators of crimes as reparations to victims.  If eligible for the funds, the family of Trayvon Martin intends to donate the money to the Trayvon Martin Foundation in hopes of preventing other parents from suffering the pain they have had to feel due to senseless gun violence.

Will it be that Appealing?

On August 1, Judge Kenneth R. Lester, Jr. of the 18th Circuit Court issued his ORDER DISMISSING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, citing the defense motion requesting his recusal as legally insufficient. That was no surprise to me, but it was to George Zimmerman. His attorney, Mark O’Mara, quickly told WKMG’s Tony Pipitone that, “We presented the motion. I think the motion was sufficient on its face. He made his decision. We’re going to review it and make a determination about whether or not to appeal it or accept it.”

I’m not surprised by O’Mara’s reaction, either, but what does it entail now? I mean, where can Zimmerman’s defense go from here? They can appeal it. Or should I say may? They may certainly appeal but it’s not all that simple, as O’Mara made clear in his second statement to Pipitone about what could happen next. The case, he said, “stays in limbo, unfortunately, for a while. We will be seeking a stay of all other matters pending until the appellate court decides, if we decide to appeal.”

The key word in the final sentence is seeking, as in “seeking a stay.” What that means is that it’s not attached to an appeal. It’s a separate request. While the appeal goes to the Florida Fifth District Court of Appeal, a stay on all other matters, quite literally, stays with the circuit court.

Here’s the first thing I thought of after learning of the judge’s decision and O’Mara’s reaction. What happens to Zimmerman’s GPS ankle monitor? What about the court order restricting him to Seminole County? I know he’s been complaining about it, and that his defense is prepared to file a motion to lift the restriction. If he files an appeal, doesn’t it put everything on hold? Well, no, but that doesn’t mean he and his team don’t have a lot of other complex things to think about.

There’s the issue of money, for instance. Filing appeals isn’t free. Just consider the time it takes to file paperwork at $400 per hour, not to mention other continuing work on the case. The appeal itself will take a long time to be heard. Where is Zimmerman’s money going to come from after his parents’ Website stops pumping oil? It will not last forever. The whole mess becomes a perplexing quandary. Does he bite the bullet and stick with Judge Lester, or does he go for the appeal with money he doesn’t really have?

WILL ZIMMERMAN DOUBLE DOWN?

The idiomatic verb form of double down means to double or significantly increase a risk, investment, or other commitment. Is Zimmerman willing to risk everything, which includes an impending money problem, in order to have a judge removed from his case? While waiting an indefinite amount of time for any other relief? Remember, filing an appeal does not mean an automatic win. The appellate court might just turn him down. Where would he go from there?

In the meantime, the defense still has the option to file an indigency motion if the well runs dry, but that means getting the JAC involved and O’Mara can kiss his $400 per hour good bye. You see, while the motion to appeal is at the appellate level, the show must go on, and Judge Lester would proceed as usual. So, while things seem like they are beyond reach for the defense, they really aren’t, but there are a number of catches. There’s the part about seeking a stay. Plus, by allowing this judge to decide motions, doesn’t it just confound the whole thing? Why let the same judge rule on anything if you want him off the bench? Right now! If O’Mara files an appeal, he’s pushed himself into a corner where he’s pretty much forced to file a stay. That’s a given, right? So what’s he supposed to do?

THE GOOD OLD INTERLOCUTORY ORDER

The Free Dictionary defines an interlocutory order as:

“Provisional; interim; temporary; not final; that which intervenes between the beginning and the end of a lawsuit or proceeding to either decide a particular point or matter that is not the final issue of the entire controversy or prevent irreparable harm during the pendency of the lawsuit.”

This could include the issue over the judge, but I doubt it, because, even though these types of actions are taken prior to trial, which fits in this case, and must be answered by an appellate court; there is a reluctance to make interlocutory orders unless the circumstances surrounding a case are serious enough to warrant such action. And they are restricted by courts because they don’t want to be tied up by piecemeal litigation. The clincher is that the lower court usually enters a final judgement, meaning a verdict, before it’s appealed.

If not that, then what?

THE WRIT OF PROHIBITION

According to The Florida Bar Journal, “A writ of prohibition enables an appellate court to prevent a lower tribunal from further exercising jurisdiction in an action. Generally, it cannot be used to remedy an act that has already happened.” Whew! Relief, right? It’s not quite that easy.

While a petition for writ of prohibition “is generally used to challenge the denial of a motion to disqualify the judge of the lower tribunal,” it is also “the appropriate method for forcing a lower tribunal, including an administrative agency, to dismiss a matter for lack of jurisdiction.”

In his order, Judge Lester did leave open the option of argument at the appellate level to establish whether the motion to recuse him was the first or second motion to dismiss the trial judge, but I wouldn’t bet the farm that the higher court would rule Zimmerman’s way. As a matter of fact, that’s not even close to being the crux of the perplexing quandary he’s in. It’s…

FLORIDA SUPREME COURT RULE 9.310.

Let’s just say that, pursuant to Florida Rule of Appellate Procedure 9.310:

RULE 9.310. STAY PENDING REVIEW

(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.

(b) deals with exceptions, such as money judgments and public officials. (c) pertains to bonds, (d) with sureties, and (e) with duration, and none of them apply. But if you move on to (f), and combine it with (a), we hit pay dirt.

(f) Review. Review of orders entered by lower tribunals under this rule shall be by the court on motion.

What’s that mean? It’s quite simple, actually. Remember O’Mara’s words to Pipitone, “seeking a stay of all other matters…”?

That’s right! In order for the defense to seek that stay, they must go through the same court, “which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.” “Review of orders entered by lower tribunals under this rule shall be by the court on motion” actually seals the deal. A stay motion would be filed in Lester’s court and he would have to move to agree to it. Would he? Oh, probably, but in the meantime, like I said, the show must go on. While filing an appeal, the defense can soldier on with their motions and the judge can continue to write orders. Unless. of course, the judge rules on a stay. In which case, poor, poor George will stay in Seminole County for months and months to come, gnawing at the bracelet that will stay on his ankle.

Yes, there’s been lots to ponder since Friday. I wonder what George thinks God’s plan is.

The "Gratest" Show on Earth

I’m in the middle of researching the obvious — whether or not it’s feasible for the Zimmerman camp to file a motion to appeal Judge Lester’s order yesterday, to not recuse himself. I will look deeply into the logistics of such a move, but in the meantime, I want to give my old (and original) blog a shameless plug. Please take a peek. Meanwhile, isn’t this case starting to grate on your nerves?

FROM THE GALLERY…

Who would ever do such a thing?

Judge Refuses to Recuse!

“The Defendant’s Verified Motion to Disqualify Trial Judge is hereby denied as legally insufficient.”

There you have it, folks. This is one time when George Zimmerman will not get his way.

(I’ve got a doctor appointment this morning. This just came over the wire and I had to put it up.)

Lester: No Judge to Rush

I could be wrong, but I do think it’s rather revealing that Judge Lester has taken his good old-time deciding whether or not he’ll step down from the bench. Granted, he’s been on vacation, but Zimmerman’s recusal motion was filed on July 13, well over two weeks ago, and as far as I’m concerned, the accused hasn’t had enough time to get nervous yet. He still thinks he’s the boss. Now, if I were in charge, I’d make him wait the full 30 days that’s allowed under the law before rendering a decision. Really rattle him. Then, I’d drop the bomb — that the judge has decided to remain on the case.

I’m not saying this because I expect Lester to be personally biased against the defendant. No, that’s hardly the reason. I just don’t think it’s right that George should get his way this time, like he’s been used to most of his life. Throw a tantrum. After all, he’s the one who lied to the court by ordering his wife to hide the truth. That means that he’s responsible for his wife facing a perjury charge. Now, he blames the court for it.

Even his attorney, Mark O’Mara, said his client lost his credibility. Soon after Zimmerman’s bond was revoked, he told Charlie Rose on CBS This Morning, “Judge Lester gave us all a very strong signal that he and he alone will run the courtroom and that everyone is going to tell the truth. So I’m certain that not only the Zimmerman family but all other witnesses that come before Judge Lester had better tell the truth and nothing but the truth if they’re going to be treated fairly.”

He readily accepted the judge’s fairness. Treat me right, I’ll treat you right.

According to a USA Today report, O’Mara said, “He [Zimmerman] should have jumped up and said she is lying. He should have done something, and he didn’t.”

I could go on and on with remarks made by Zimmerman’s own defense, but the fact remains, he lied and that’s all there is to it. O’Mara acknowledged that it would take a lot of work to regain the judge’s trust, and he admitted it was a huge mistake. He expected the judge to have a strong opinion. Rightfully so! This is nothing new, and it leads me to believe that, had the more prudent O’Mara prevailed, he would have worked out the messy kinks because he knows how much the judge and most in the legal field admire his honesty and professionalism. I believe the motion to recuse was Zimmerman’s idea, and his alone; just like taking command of his Website again. Not to mention his parents’.

Here’s the deal, in my opinion. Judge Kenneth Lester will “Stand His Ground” and remain seated. Why? Because Florida and federal law is on his side, and I don’t think he will relinquish anything to a punk, whether it’s “appealing” or not. He doesn’t strike me as a quitter.

According to The Law of Judicial Disqualification or Recusal, Florida Rules of Disqualification: Rule 2.330. Disqualification of Trial Judges, Zimmerman’s defense cites:

(d) Grounds. — A motion to disqualify shall show:

(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or

(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

I can clearly understand the first motion to recuse against Judge Reckseidler based on (d)(2), but will the motion against Lester stand on the merits of (d)(1)? On his motion against Lester, Zimmerman added:

(f) Determination — Successive Motions. — The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

This means if the judge denies the defense request, no explanation is to be given. A simple “NO” will suffice. End of story. Time to move on.

As I wrote in my first article, Why Judge Lester Will Refuse to Recuse, a defendant cannot simply lie to a judge and get away with it. If a judge cannot respond without showing any kind of opinion regarding said lie, what’s the court to do? Evidence proved Zimmerman lied and the judge responded with disdain. Lying in court is against the law, and if all a person has to do is lie to the judge to get him/her recused for voicing concern, it would be anarchy in the courtroom. This would mean that every time a judge cries, “May God have mercy on your soul” after a death sentence is pronounced, the defendant should get the case thrown out of court. Not guilty on a technicality. The judge voiced his opinion on the verdict and a personal belief in religion. Separation of church and state!

Now, we come to a matter of law. Let’s quickly examine Section 455 of Title 28 of the United States Code, Disqualification of Justice, Judge, or Magistrate Judge. The most important part of this section is that in order to warrant a recusal, the judge’s expressions of opinion about the merits of the case must have originated outside the case.

Held: Required recusal under §455(a) is subject to the limitation that has come to be known as the “extrajudicial source” doctrine [or factor]. Pp. 3-16.

The general rule is that a judge should be disqualified “where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding…” This pertains to a prior opinion, and that would mean Judge Lester would have to have had an interest in the case before it was assigned to him. Surely he heard about it in the news? That’s not relevant. (See: Liteky v. United States (92-6921), 510 U.S. 540 (1994).) Under Liteky, the judge is expected to form opinions based on what is presented during the proceedings, not before. Remember that a judge formulates an order based on case law, and each side presents its own case law examples. Such is the situation regarding this recusal motion and the state’s very own response.

If we go back to the Casey Anthony v. State of Florida case, we saw multitudes of examples where Judge Perry admonished Jose Baez. If ever there was a situation that appeared to be biased and prejudiced, that was the one. Had Ms. Anthony been convicted, would it have been overturned on appeal based on the less than cordial interaction between Perry and Baez? I seriously doubt it, and do you want to know why? Because, in the end, the defendant was found not guilty of murder. The End. If the judge showed any bias or prejudice toward the defendant or any of her attorneys, the jury failed to notice. Why? Because the system worked and it will work again.

Judge Lester is tenacious. He has no reason to relinquish the bench. He saw right through George Zimmerman from Day 1 and he will see him right through to the end. That’s my judgement. That’s my opinion.

All About You

Plurality: the Concept of Quantity

Lately, I’ve been listening to the beats of distant drums. The boom-ba-boom-ba-boom I’m hearing questions whether the state has a case against Shellie Zimmerman. Was the felony perjury charge against her too far reaching that it really holds little to no merit? Or was the state correct in issuing the arrest warrant?

Some of what I’ve been reading comes down to a relatively simple, yet complex, statement similar to the one that former President Clinton once uttered. “It depends on what the meaning of the words ‘is’ is.” I think we’re familiar with that one — not that this has anything to do directly with what I’m writing about, but keep in mind that the 42nd president was also an attorney and we are talking about law. Besides, Clinton’s statement segues easily and smoothly into linguistics, which is the study of language. This post will come down to the meaning of you. Not you personally, mind you, but the meaning of the word itself. You.

In college, I was fascinated with the English language. One of my first English course books was Language in Thought and Action by the late S.I. (Samuel Ichiye) Hayakawa, once a premier linguist, psychologist, semanticist, teacher and writer. Back then, he taught me a lot about word usage. There’s a good and bad way to say things, and depending on how you use words, the outcome could be disastrous. An example of this would be in how you might order something in a restaurant. Would you ask for a chopped up dead cow sandwich when all you really want is a hamburger?

Another one of my favorite writers was (also the late) William Safire; well versed in lexicology, syntax, pragmatics and etymology, he was once the premier etymologist in the country, and for many, many years, I tried my best to read his column, On Language, every week in the Sunday New York Times Magazine. Between those two men and my (very much alive at 93) uncle, David A. Kyle, they are who inspired me to write. Not that I learned anything. Anyway, back to the matter at hand…

I’m going to ask you a simple question and I want no answer. I just want you to remember it for now and wait until I tidy it up at the end. By then, you should understand. Suppose you are at the mall without your significant other. You run into a friend with or without their spouse. You chat briefly and then are asked, “Would you like to join us for a double-date Friday night?” Keep that in mind.

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We know what perjury is and we know Shellie Zimmerman was charged with it soon after an official courtroom proceeding. We also know why she was charged.

“… whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree…” (F.S. 837.02 - Perjury in official proceedings)

Do we agree that, in a legal sense, the charge will stand? Can we really make any call like that until after the dust settles, when a verdict is read? One of the most important things we need to keep in mind is that, in a courtroom, the battle between opposing sides comes down to the interpretations of laws and many of the statements made by people directly involved in the case and, most importantly, the defendant. That includes words and actions.

During Ms. Zimmerman’s telephonic testimony regarding finances at her husband’s bond hearing on April 20th, she was first questioned by his defense attorney, Mark O’Mara. Here is part of the exchange between them:

Q. Other major assets that you have which you can liquidate reasonably to assist in coming up with money for a bond?
A. None that I know of.
Q. I have discussed with you the pending motion to have your husband George declared indigent for cost, have I not?
A. Yes, you have.
Q. And is — are you of any financial means where you can assist in those costs?
A. Uhm, not — not that I’m aware of.
Q: I understand that you do have other family members present with you, and I’ll ask some more questions of them, but have you had discussions with them of at least trying to pull together some funds to accomplish a bond?
A: We have discussed that —
Q: Okay.
A:— trying to pull together the members of the family to scrape up anything that we possibly can.

Assistant State Attorney Bernie de la Rionda had an opportunity to cross examine her:

Q. And you mentioned also, in terms of the ability of your husband to make a bond amount, that you all had no money, is that correct?
A. To my knowledge, that is correct.
Q: Were you aware of the website that Mr. Zimmerman or somebody on his behalf created?
A: I’m aware of that website.
Q: How much money is in that website right now? How much money as a result of that website was —-
A: Currently, I do not know. 
Q: Do you have any estimate as to how much money has already been obtained or collected?
A: I do not.

I don’t know if you are getting my drift or not by now, but let me say that there could be a possible problem over that final exchange and the word you. You see, there’s a method to my madness and it comes down to how that simple word is conceptualized. In the English language, there is no plural for this particular second-person pronoun. Singular is the same as plural, so it is open to interpretation. It could go either way.

In the O’Mara exchange, “other major assets that you have…,” if you is taken as plural, it would include her husband, and it would change the entire meaning. De la Rionda was a bit clearer when he worded it, “‘you all’ had no money,” but the final exchange between them is the real quandary. “Do you have any estimate as to how much money has already been obtained or collected?” Is that singular or plural? You see, the secret jail house code conversations will show that she was aware of money, and lots of it, but did she have an estimate of the amount at the precise time she was questioned by the prosecutor? That could be a sticking point. She, by herself, denied knowing, but if de la Rionda’s usage was intended to be plural, then, legally, they both had an estimate; just like asking you out on a double-date. Singly, you as a word wouldn’t work for the state. As a couple, it would.

Personally, I think the state has the goods on her — enough to convict, but you never know these days, as we all understand from the last Orlando debacle. Oh well, what will be will be. It is what it is, you know, and I guess, in the end, it may come down to what the meaning of the word “you” is.

ZIMMERMAN: I'M SORRY, BUT IT WAS GOD'S PLAN

Statement from Martin Family:

GZ said that he does not regret getting out of his vehicle, he does not regret following Trayvon, in fact he does not regret anything he did that night. He wouldn’t do anything different and he concluded it was God’s plan.

Tracy Martin: We must worship a different God because there is no way that MY God would have wanted G. Zimmerman to KILL my teenage son.

§

Yes, George Zimmerman did say both, but not in that order. God came first — then the apology. Throughout the interview, he kept his eyes on the host, Sean Hannity, but when he was offered the opportunity to give his final thoughts with a minute or two left, he turned to face the camera, just like a seasoned politician. My fellow Americans… This dude is one smooth operator, but fortunately, he thinks more highly of himself and about what he did than most people’s perceptions. He’s good, but he’s no pro. Ironically, I do believe he and Mark O’Mara are reeling in the money after tonight’s performance because we live in a time when you can make a fortune off your dead victim. How sad.

I’ll tell you, while most reasonably sane people understood Jim and Tammy Faye Bakker and what made them tick, their flock kept right on flocking and the dumb kept right on donating. The main difference between Zimmerman and Tammy Faye are the make-up and tears. Well, I think there’s another distinction and it’s an important one. Had Tammy Faye been around The Retreat at Twin Lakes that fateful February night, God rest her soul, she most likely would have marched right up to Trayvon and asked him what he was doing. She was a feisty one. She would have asked him to pray with her, too. Then, she would have asked for money. George, on the other hand… he just wimped out.

Hannity went easy on him. He could have asked questions about why Trayvon’s body was found farther south from where the confrontation took place, according to his account; how he managed to get the gun out of the holster upside down and fire directly (meaning straight) into the victim’s upper chest; and how the boy’s arms were tucked neatly under his body the way they fell, when he showed investigators during the reenactment how he spread them out and away from his sides. There have been so many inconsistencies in his stories but, like political interviews, I suppose, there will always be questions that remain off-limits. I understand — there’s a trial ahead — but I still believe that George Zimmerman will never, ever admit that what he did was wrong, and tonight he proved it. He said he was sorry about what happened, but quite absent was an apology for what he did; he got out of his vehicle with a loaded gun. Instead, he asked for apologies from Al Sharpton and Spike Lee for calling the shooting a racial crime.

PFFFFFT. As if he would ever be the one to say I’m sorry to.

Oh yes, he’s good, alright, but even after he clarified his ethnicity by saying he’s caucasian and Hispanic, he made it a point to call himself an American first; above and beyond. Well, Yankee Doodle Dandy, George, you sure do know how to touch the masses. I don’t think you’ll ever be president, but after tonight, I’m not quite sure how you feel about that.

(The interview was held today at an area hotel and there was no monetary payout according to both parties. Zimmerman denied ever knowing about “Stand Your Ground” prior to the incident, and neither Zimmerman or O’Mara solicited donations on the show.)

Why Judge Lester Will Refuse to Recuse

I can understand why George Zimmerman’s defense attorneys, Mark O’Mara and Donald West, filed a motion for Judge Kenneth Lester, Jr. to step down. It makes sense. For one thing, had they not, it wouldn’t help pave the way for a retrial later on if Zimmerman is convicted. I’m sure he requested it, too, and no matter what, the attorneys are there to work for their client. Besides, George is used to getting what he wants, he believes this is a frivolous case, and he wants a new judge. So there. Only it doesn’t work that way, and there are some rather good and strong reasons why.

Let me first mention a few “for instances” that were mentioned in the actual motion filed by his attorneys, the VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, which can be viewed HERE, directly from the gzlegal.com Website.

On page 5, the motion says:

“Generally a statement by the judge that he feels a party has lied in a case indicates bias against the party.”

Now hold on a minute. Didn’t another judge once say something about the truth and Miss Anthony are strangers? That had nothing to do with his recusal request, did it? No, it didn’t, and as a matter of fact, look at it this way. If all I had to do was lie to a judge to get him/her disqualified for bias, I’d lie to every judge who comes rolling down the pike, and I’d never go to trial. They’d run out of judges long before the statute of limitation runs out. Like a lot of defendants, lie your way out of it.

Let’s move on to page 7:

“The Court states that the money used to post bail ‘… is not money which the Defendant has earned through his hard work and savings, so forfeiting it for failing to appear would not impact the Defendant’s life in the same manner as a similarly-situated defendant who puts his house up for collateral to obtain bond.’ Page 7, (f). However, the Court fails to note that his family’s home would thereby be forfeited if he failed to appear. Further, the Court ignores the reality that those funds are the only funds available to Mr. Zimmerman to survive, to eat, to pay for utilities and to provide his family shelter.”

Here are the problems I see. George Zimmerman not only lied to the court, he lied to his parents, who took out a second mortgage on their house to secure the bond money. What a weasel. He lied to his attorneys, too. As for food and shelter, it was clearly spelled out that the money was to be used for his defense, not to pay off credit card bills and to buy expensive guns. Aside from that, it’s a lousy excuse and a cheap argument.

From page 9:

“The Court departed from its role as an impartial, objective minister of justice when it stated on two occasions on its Order that in the Court’s personal opinion there is probable cause to believe that the Defendant committed a violation of Florida Statute 903.035(3), a third degree felony punishable by five years in prison. This is tantamount to instructing the State that Mr. Zimmerman should be prosecuted for this offense. Comments like these are taken seriously by the Defendant, and further convinces him that he cannot get a fair trial from this Court. The Court made a similar comment about his wife at the June 1, 2012 bond revocation hearing when it said…”

We all know what it said, and Shellie Zimmerman was duly charged. The problem here is that the motion blames the judge and not his client. Had his client and wife just told the truth to begin with, this would not be an issue. It’s a situation that is being passed off on the judge. The fact remains that the Zimmermans lied and the judge pointed it out, including what the possible charges and penalties might be. Who is to blame for that? Was the judge merely telling the truth? Poor George says he takes the judge’s comments seriously. Well, shiver in me boots. What about the judge? He took the Zimmermans’ comments seriously, too, but according to the Book of George, he wasn’t supposed to do that? Only George is allowed? Gimme a break. I could go on and on, but…

George is responsible for his own mess. Based on the recusal motion, I see nothing that warrants the judge to step down, but that’s only part of the reason why this judge will refuse to recuse.

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I think that most of you are aware of a role I played in a motion filed in another case where the presiding judge was asked to step down. I did an awful lot of legal studying back then, and in March of 2011, Casey Anthony’s defense filed a motion, the MOTION FOR A REHEARING ON ORDERS DENYING MOTIONS TO SUPPRESS, that had this one glaring statement:

c. The Court Did Not Look at the Evidence from the Hearing Objectively and Instead Displays a Clear Bias [emphasis mine] In Explaining Law Enforcement Conduct Rather than Evaluating Whether a Reasonable Person Would Have Felt Free to Leave.

Holy Foghorn Leghorn! Only thing is, under FLORIDA RULES OF JUDICIAL ADMINISTRATION, Rule 2.330, DISQUALIFICATION OF TRIAL JUDGES, “Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.” OK fine, but what it means is that the procedure for filing disqualification motions for civil and criminal cases is set out in Rule 2.160 of the Fla. R. Jud. Admin., amended by the Florida Supreme Court in 2004.

Since this is the route O’Mara and West are taking, they should be familiar with F.S. §38.10, which states:

Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the prescribing judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.

But please pay particular attention to this part:

However, when any party to any action has suggested the disqualification of a trial judge and an order has been made admitting the disqualification of such judge and another judge has assigned and transferred to act in lieu of the judge so held to be disqualified, the judge so assigned and transferred is not disqualified on account of alleged prejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge admits and holds that it is then a fact that he or she does not stand fair and impartial between the parties. If such judge holds, rules, and adjudges that he or she does stand fair and impartial as between the parties and their respective interests, he or she shall cause such ruling to be entered on the minutes of the court and shall proceed to preside as judge in the pending cause. The ruling of such judge may be assigned as error and may be reviewed as are other rulings of the trial court.

Remember the first judge? Jessica Recksiedler? She was asked to recuse herself and that’s how Judge Lester came to the bench.

After Judge Recksiedler willfully stepped down, and she could have easily remained on the bench, Judge Lester cannot be disqualified because of alleged prejudice solely based on what Zimmerman claims. The only way it would work is if Lester admits he is biased in favor of the prosecution. Even then, his admission would merely be recorded in the court minutes and the trial would proceed on schedule. Of course, this would be reviewed after a conviction (if there is one) and it would, no doubt, lead to a retrial, but let me assure you, this judge will not fail. He will never admit to bias, and because he’s the second judge, the rules are different.

One of the misconceptions of trial court judges is that rulings are the basis for disqualifications. They are not, as O’Mara and West are claiming in their motion. A judge may not be disqualified for judicial bias. He/she can be disqualified, however, for personal bias against a party. (See Barwick, 660 So. 2d at 692, and cases cited therein.) You just have to prove it.

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Lest you think I will leave you dangling with merely one slice of cake from the book of rules, allow me to add a thick, sweet, slab of icing to the entire cake.

Back to good old Rule 2.160…

Section (g) deals with the filing of successive disqualification motions. This is to prevent the possibility of abuse, otherwise referred to as judge-shopping. Yes, you read it right… JUDGE-SHOPPING!

When Judge Recksiedler disqualified herself, Judge Lester cannot be disqualified on any successive motions filed by Zimmerman’s defense “unless the successor judge rules that he or she is in fact not fair or impartial in the case.” And that ain’t gonna happen, folks. Judge Lester will be allowed to toss out any new dismissal motions filed on Zimmerman’s behalf.

See also: The Florida Bar Journal, Judicial Disqualification: What Every Practioner (and Judge) Should Know, Douglas J. Glaid, October, 2000 Volume LXXIV, No. 9

No Smoking Gun?

There wasn’t really any shockingly new or surprising material in Thursday’s document release from State Attorney Angela Corey’s office, but I did manage to squeeze out a bit of information. Ever since this news story broke, my main contention with George Zimmerman was that he got out of his vehicle with a loaded pistol to chase after a figment of his distorted imagination — a hoodlum; a bona fide bad guy. Prior to yesterday’s release, we knew nothing about Sanford’s three main gangs, all known as “goons” in one way or another. Could Zimmerman have uttered “f*cking goons” under his breath during his now famous call to a Seminole County police dispatcher that fateful night of February 26m 2012? It makes more sense than “cold” or “punks” doesn’t it? And it’s a matter of fact that the majority of those goons are made up of minority ethnicities; African-American and Hispanic. For me to say so does not make me a racist.

One thing is certain regarding race. Not one of the nearly 30 people interviewed considered Zimmerman to be one, either, and I, for one, never believed he was from the gitgo. If anything, look at the city of Sanford and Norm Wolfinger’s office for racial issues but, even there, I would dare say you will never find anything close enough to substantiate claims of bias. Odds are good that had it been a Hispanic wearing a hoodie that night, his fate would probably have been the same. Zimmerman was on a mission. Look to Bernie de la Rionda for guidance on this matter. He maintains that Zimmerman is guilty of criminal profiling. That’s a far cry from racial profiling. On this issue, I suggest we move on because there is nothing to substantiate any prejudice and all that will come out of it will be feuding and hard feelings among commenters. The real issue remains the same. Zimmerman profiled, stalked and murdered an innocent teenage boy. Regardless of what anyone feels Martin had done prior to that night, he did absolutely nothing to deserve what he got — a hollow-point bullet through his heart.

I’m going to start by taking this page-by-page. I will readily admit I didn’t get everything, so I will rely on you, dear reader, to fill in the gaps and offer up your ideas. There’s a lot to discuss.

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On page 11 of the 284-page document, State Attorney’s Office Investigative Division Memorandum, an enlightening statement was made by a Sanford police officer:

“Officer Mead saw the flashlight ‘on’ at the intersection of the two walkways when he responded to the scene.”

Actually, the flashlight was found south of the intersection, as the maps will show, but the part that’s very revealing comes from what Zimmerman told investigators during his next day reenactment. He specifically said his flashlight was not working that night.

“… I had a flashlight with me. The flashlight was dead, though…” (Watch HERE; 8:11/15:04)

This is another example of Zimmerman’s imagination getting the best of him. Does he assume that changing the facts literally changes the facts to his advantage? Does he think people are so stupid he can pull the wool over their eyes, including trained law enforcement investigators? Yes, I’m afraid so. It also means, in my opinion, that he pounced on Martin, cop style, with gun and flashlight in hand, right in the young man’s eyes.

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On page 34, during the night of February 26, while at the police station:

“The Evidence Technician came and collected clothing and photos of Zimmerman. The injuries to the back of the head of Zimmerman appeared to be abrasions and not lacerations.”

What this tells me is that Zimmerman was never close to his demise. If Martin popped him one, it was in self-defense and he he had it coming. It also tells me that those butterfly bandages on the back of his head, placed there by his wife, (shown the next day during the reenactment) were a farce and nothing more than a pity ploy to make him look more injured than he was.

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On page 54 of the document, and part of the FDLE Investigative Report, Wendy Dorival put on a presentation at a Retreat at Twin Lakes HOA meeting at Zimmerman’s request. She is a civilian liaison with the Sanford Police Department. Held on September 22, 2011, she clearly instructed Zimmerman of the rules. A witness (name withheld) at the meeting said that:

“… it was told, you watch, you do not take any action on your own, you get away from the situation and you call the police.”

These are guidelines, not laws. Zimmerman was not supposed to be carrying a firearm, either, but he was licensed by the state of Florida to do so. The point of this is to show that he was aware of the rules, yet he chose to ignore them. Why?

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On page 60, one of the witnesses noticed that the loud noises were getting closer.

“They first thought it might be kids in the neighborhood or people having a good time outside. Hearing the noise a second time, he decided to mute the television. Not hearing anything at first, he heard the sound again as if it was coming toward him and getting louder.”

What this signifies is movement, which contradicts Zimmerman’s account of where the fight began and where Martin fell to his death, which were in close proximity. According to Zimmerman, there was no running; no real movement. The maps show that the fight did not take place where he said it did, and Martin’s body was found farther south.

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On page 65, another witness describes what she heard and saw. To be fair, she did take her contact lenses out before being compelled to look out of a back bedroom window:

“Hearing what sounded like running, she glanced out of the bedroom window (rear facing) to see a person go by from left to right (in a south to north direction).”

What this tells me is that, if true, Martin and Zimmerman were farther south than Zimmerman explained in his reenactment, and that Martin was much closer to where he was staying; in the townhouse that was east and most south of the sidewalk where he fell.

§

Another witness, on page 71, states that he heard what sounded like an argument, right in the area of the T-section on the walk way. He then said:

“… he heard a scuffling sound that was moving down the walk way getting closer to the building next to his house.”

This means the chase headed north, but the ensuing battle moved Zimmerman and Martin toward the south, as one of them fought back. (See map)

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On page 74-75 of the FDLE Investigative Report, Wendy Dorival said she never had any further contact with Zimmerman after their September HOA meeting until the following month, when he requested information on a recent burglary that happened in the area. However, at the meeting, she gave him a neighborhood watch coordinator’s handbook and explained all the duties and responsibilities. She also asked him for something else:

“Dorival said during the meeting with Zimmerman she asked him to make a list of all the neighbors who wanted to be involved in the crime watch program. Zimmerman was then to determine who would be willing to be block captains and get her the list… Dorival said Zimmerman never provided her with the list of names for the crime watch program.”

This can be highly revealing. Was Zimmerman a loner? Was he a vigilante who wanted all the glory for himself? Or was he lazy and someone who didn’t follow through on his obligations? Not according to his work ethic, where he was quite adept at his responsibilities, according to interviews with associates.

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Page 76 is a very telling page. The FDLE report explains what agents found in Zimmerman’s possession the day he turned himself in to authorities on April 11:

“Upon the completion of booking Zimmerman into the Seminole County Jail, SA Rogers transferred a Fabrique Nationale Herstal (FNH) Five-seven handgun cal. 5.7 x 28 SN# 386201358 and three magazines with ammo to SAS Duncan. SA Rogers stated that the handgun and magazines were the property of Zimmerman.”

It’s my understanding that this particular weapon is a police killer because of its ability to pierce armor. I imply nothing by stating that. You can formulate your own opinion, but the gun was fully loaded and each clip holds 20 rounds. That’s 80 bullets, folks. I understand his fear and desire to protect himself, certainly in light of the New Black Panther Party threat against him, but my question is whether this particular gun is overkill. Until his arrest, it was still legal for him to carry a firearm. To those who give to his cause, you’re out $1,200, plus extra clips and ammo. If he’s found not guilty, thank yourself for buying him one helluva pistol.

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On page 78, Zimmerman spins his tale to a witness, who I will assume is Frank Taaffe, Joe Oliver or Mark Osterman. What really intrigues me the most is how Zimmerman was able to pull the gun out of his holster. Of particular interest is the fact that he is left-handed and the holster was on his right hip, set-up for a left-handed person to reach across his chest and belly to go for the gun. While that might not seem like much, it also means that when he went for the gun with his right hand, he either fired it upside down or he had the time and space to turn the gun right-side-up before firing it straight into Martin’s chest:

“Zimmerman used both his hands to pull Martin’s hands away from Zimmerman’s mouth. Martin then observed or felt the handgun on Zimmerman’s side, took his other hand away from Zimmerman’s nose and reached for the handgun stating, ‘You’re gonna die now Mother F*cker.’ Zimmerman slapped Martin’s hand away from the handgun, pulled the handgun, rotated the weapon and fired one round. Zimmerman’s elbow was on the ground at the time he fired.”

I find this to be extremely problematic for several reasons. It means that, since the bullet went straight into Martin’s chest, he had to have been perfectly parallel to Zimmerman’s body at the time the bullet was fired. Why? Because earlier in the interview, Zimmerman’s friend said this:

“Martin and Zimmerman struggled, which resulted in Martin gaining a position on top of Zimmerman, sitting on Zimmerman in the ‘mounted position,’ Martin’s butt on Zimmermans stomach, with Martin’s knees on the ground next to Zimmerman’s ribs.”

 With knees positioned the way they were, how does one wiggle their way out? How did the gun move from behind Martin’s thigh to in front of it? If Martin was riding Zimmerman like a horse, how did the bullet go straight into his chest while Zimmerman’s elbow was in direct contact with the ground? If Martin was positioned parallel to Zimmerman at the time of the shooting, how did Zimmerman manage to get the gun between the two sandwiched chests, let alone with enough of a gap to point the gun straight in?

Incidentally, Zimmerman said he made eye contact with three witnesses during the struggle, yet no witness has admitted to that. How observant for a guy to notice that, yet he contradicted himself regarding Martin’s age; someone who was a heck of a lot closer than the nearest witness.

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On page 86 of the FDLE report, a background interview took place with the person who provided Zimmerman’s firearms safety training course. Zimmerman’s certificate was dated November 7, 2009. I will have a complete article that will describe, in detail, what led up to George’s obsession with buying guns. Yes, it’s about a dog. Until then, there is plenty to discuss, including personal issues regarding his family and a certain ex-fiance. That’s too much to handle in this post, so please feel free to address his temperament and anything else. Certainly, if I’ve missed anything else, I’d be more than happy to learn, but as far as I’m concerned, the only smoking gun, so far, is the one that George Zimmerman held in his hand on February 26, 2012.

Gun Power

There’s been plenty of talk around the blogs and forums of late about working out a plea deal. You know, why not let George Zimmerman plead guilty to a reduced charge of manslaughter and get it over with? It would save the state of Florida a lot of money, and that’s what this was all about to begin with, right? Well, yes, it would save money but, no, it was not what the state had in mind at all. Well, maybe there’s one major detail, which I’ll explain later.

To begin with, I now agree with what former lead investigator Chris Serino said about the manslaughter charge. He actually knew what he was talking about, but before any of you throw racial darts my way, or missiles of any kind for any reason, you’d better keep an open mind and read the entire article or you’ll be spending some time left out in the cold during one of the most brutal summers on record.

Yeah, George, take the plea!

No, don’t!

Any way you look at it, if he is convicted of second-degree murder, it goes without saying that it would be a felony conviction. But what about manslaughter? Would it be a felony or a misdemeanor if he’s convicted of that instead? Murder is a piece of cake to explain. It means that malice aforethought must be present, whereas in manslaughter, it’s absent. Absence of malice. OK, that’s easy enough to grasp, but what makes it a misdemeanor or felony?

Involuntary manslaughter means causing the death of another person without intent. Generally speaking, it’s caused by an improper use of reasonable care while carrying out a lawful act, or while in the commission of an unlawful act not amounting to a felony. Let’s say drag racing with your car that results in a homicide. You took an unreasonable and high-degree of risk and that’s considered criminally negligent manslaughter. On the other hand, let’s say you’re chopping down a tree and accidentally hit someone with the ax — killing him — there’s nothing criminal about it. In many states, depending on the degree of involuntary manslaughter, it could be a misdemeanor or a felony.

In the case of voluntary manslaughter, we’re talking about an intentional killing that’s accompanied by added circumstances that mitigate the killing, not excuse it. In its most common form, it occurs when a person is provoked to commit the homicide. This is felony manslaughter, and it goes to the very heart of the Trayvon Martin shooting death, whether it’s considered manslaughter or second-degree murder. Either way, if George Zimmerman is convicted, it will be a felony conviction. Interestingly, the Orlando Sentinel reported that the paperwork originally sent to prosecutors stated that there was probable cause to charge Zimmerman with manslaughter. The Sentinel article went on to say that it “was signed by lead Investigator Chris Serino and his boss, then-Sgt. Randy Smith, but it was the department’s official position and had the support of [former Sanford police Chief Bill Lee Jr.] said Capt. Bob O’Connor, who oversees the department’s major-crimes division and also was part of the investigation.”

Well, what’s all this hubbub about manslaughter or murder? Why is the public split on it? I mean those in the Martin camp. You see, it really doesn’t matter and that’s why some attorneys believe the state overcharged. Of course, that major detail I said I’d explain later could be as simple as getting him to plead to something — PLEAD DOWN — but it’s not. It can’t be.

You see, back in the late 1990s, George Bush’s younger brother, Jeb, was governor of the great state of Florida. He pushed through a law, Florida Statutes, Section 775.087 (2)-(4), that became effective on July 1, 1999. What was it, you ask, that could have come from a conservative, gun-respecting, NRA-allied Republican; the same Jeb Bush who signed SB 436, better known as “Stand Your Ground” into law in 2005?

Why… the legislation enacted his initiative providing mandatory sentences for felony convictions of crimes in which a gun was used. Plain and simple.

For pulling a gun during a crime, a mandatory minimum sentence of 10 years is imposed. For certain felony crimes or attempted felonies, the 10 year mandatory sentence is authorized if the criminal possessed a gun (or destructive device). For firing the gun during a crime the mandatory minimum sentence is 20 years. For injuring or killing a victim by firing the gun during a crime, a mandatory minimum sentence from 25 years to life in prison is authorized. (See: Mandatory Sentences Under the 10-20-Life Law and Experts: Florida’s ‘10-20-Life’ empowers prosecutors but handcuffs judges, juries, defense attorneys)

So you see, forget about whether it’s second-degree murder or felony manslaughter because, either way, they are both felonies and if you are in Trayvon’s camp, all you want is a conviction. Stop worrying about a plea. The least Zimmerman could get would be 25-years. That sort of changes the perspective on Mark O’Mara now, doesn’t it? 

The Bond Conundrum

Judge Lester’s bond order regarding George Zimmerman will be released by the Seminole County Clerk of Courts today. Will it allow Zimmerman to be released or will it keep him in jail until the outcome of his trial? I don’t even consider Stand Your Ground a viable defense, so forget that.

In my opinion, the judge has an easy route to take. He can allow Zimmerman to be released on bond, but set that bond as high as $1,000,000 (or higher.) It would clearly take the onus off the court and lay it directly into Mark O’Mara’s lap. How, you say? It’s quite simple, actually. If Lester disallows bond, he may come across as a hard-nose — unbending and cold. On the other hand, if he grants bond, he could be perceived as having the wisdom of Solomon. I think he’s a shrewd intellectual. By washing his hands of it, Mark O’Mara would be left holding the cards. That means $100,000 will come out of Zimmerman’s bank account to free him. What does that mean? Would it cut into the defense team’s budget? Immensely! Will the defense come to a screeching halt? Will O’Mara try to convince Zimmerman to remain in jail so a proper defense can continue? There lays the conundrum. The money really belongs to Zimmerman. It would be his call to make.

Through Paranoid Eyes (The Clincher)

And his own words that are nothing but lies

In the last post, I wrote about the inconsistencies in George Zimmerman’s stories about what transpired the night of the shooting. The following 8 photos are video screen shots taken from his reenactment. Below it will be an overhead view of the location, according to George, of where the fight and gunshot took place.

Approximate area where Trayvon stood according to Zimmerman.

The above photos show George’s reenactment positions during the confrontation. I have several problems with that. One, where was Trayvon hiding? The sidewalk paths are open except for the spindly trees — certainly no place to hide. Two, Trayvon was positioned southeast of George, who said he was heading back to his vehicle. In order for this fight to have occurred where George said, it meant he would have had to go to Trayvon. If it was the other way around, the fight would have taken place where George stood, on the sidewalk heading west. The third problem with the scenario George gave was that Trayvon shouted out to him. I’m not a fighter, but common sense tells me that if I am going to surprise someone with a punch, I am not going to say a word beforehand, which would give my opponent a warning first. I’d hit him and then ask him why he was following me.

Do you understand the problem? George would have to have turned toward Trayvon and walked to him. That’s all there is to it. Of course, there’s one more thing that makes absolutely no sense at all, and one of the commenters, CherokeeNative, brought light to it last night, before I had a chance to put this post up. THIS IS THE CLINCHER. To those of you who don’t read the comments, you can see from the next image why there’s a major, major problem with George’s account of the events the night of February 26. Had George been walking back to his truck like he said he was, from east to west, then why was Trayvon’s body found much farther south?

George must have surprised Trayvon, and that means he was never walking back to his truck from checking house numbers, like he said in his reenactment. Nor was he ever asked by the dispatcher to do such a thing.

Witness points to spot where Trayvon died

Through Paranoid Eyes

I don’t know if it’s just me? Or if anyone else noticed it, too? It seems that George Zimmerman likes to end his verbal discussions on a high note. By that, I don’t mean positive. He ends his sentences like he’s asking a question. He turned here? He walked over there? I lost sight of him? It sounds as if he’s not sure of himself and he’s subconsciously asking for a vote of confidence or a pat on the back or redemption or justification or something. I don’t know. Maybe, it’s just me, but I noticed something else that connects with it. Beginning with his written statement to police and in every subsequent explanation he’s given to date, he starts each account of the night of February 26 with an excuse for why he shot Trayvon Martin.

“In August of 2011, my neighbor’s house was broken into…” Most of the first page of the Sanford Police Department Narrative Report is dedicated to the past, not the present. Tell us what happened on this night, George, not about last August. Does he always think this way or is he seeking atonement for what he had done?

(Before I go further into my own assessment, let me say that, until some sort of confrontation took place, George was well within his right to get out of his car and walk around the neighborhood for whatever reason. He broke no laws, but was it the prudent thing to do? That’s another issue altogether. If he wanted to be a hero that night, there was nothing in the world to stop him. Not even his own better judgement, if such a thing exists. The law was on his side going into it.)

I’m going to look at the video reenactment of the night and compare it with the phone call to the SPD dispatcher. Right up front, I’ll tell you I don’t put much faith in George’s account of events. I base this not on bias or prejudice, but on George’s own words to investigators and the dispatcher, plus photographic evidence taken the night of the shooting.

At the onset of the video, George is shown leaving his home at 1950 Retreat View Circle, where he travels north and spots Trayvon at the first bend in the street,  curving to the right. He said he was on his way to the grocery store. Certainly, I can understand his suspicion because of other break-ins in the neighborhood, and here was someone, a person, he was not familiar with. Interestingly, in a subsequent interview with police, he stated that he was aware of everyone living in that complex.

As Trayvon walked east, after entering an unorthodox, but commonly used entrance, George continued driving ever so slowly, keeping a watchful eye on his prey. He noted, in great detail — and despite suffering from ADHD — every move his suspect made, even though sunset came at 6:23 pm that day. Sanford police logs showed his call began at 7:09:34 pm, 46 minutes into darkness. Granted, lights and rainy reflections from streets and porches may have impacted what he saw, but it was a far cry from daylight. George slowly passed the boy and pulled into a parking spot in front of the clubhouse, where he called the dispatcher on the non-emergency number. At this time, Trayvon was across the street, behind him. Of course, it’s only common sense that, until I pass you, I am following you. Once I pass you, you are following me.

It’s important to note that, throughout the police call, George had nothing but negative things to say about Trayvon. Something’s wrong with him. He’s on drugs or something. He’s up to no good.

At nearly one minute into the call, George said, “… now he’s coming toward me,” and, “Yup, he’s coming to check me out…”

Trayvon kept walking and went past George and the clubhouse, turning right on Twin Trees. “These assholes always get away,” George reacted as he lost sight of the boy. This is where he goes after Trayvon again by following him in his truck. At 2:09 minutes into the phone call, he exited the vehicle without provocation from the dispatcher. In other words, the dispatcher did not ask him to do anything, and that included no request for an address.

On the video reenactment, George stated that the dispatcher asked him if he could go somewhere where he can see him. Not true! The dispatcher made no such request. He also told the detective (during the reenactment) that Trayvon went around the back of the townhouses, away from view, and returned to circle his vehicle. He also said that he told the dispatcher of this move during the phone call.

He told the dispatcher no such thing. There was nothing said about circling his vehicle. Instead, during the phone call, you can hear George’s heavy breathing and the wind in the phone, indicative of someone running. He was chasing after the boy. Up to this point, no word was said on the phone about finding a street name or building number.

The dispatcher asked him, “Are you following him?”

He responded, “Yeah.”

The dispatcher advised him that, “OK, we don’t need you to do that!” By the way, I did speak with the supervisor of dispatchers with Seminole County and she told me it is strictly advice. George was under no legal obligation to obey the directive.

“OK,” George said, but you could still hear the wind in his phone. Moments later, he told the dispatcher that his suspect ran. He lost him! But it was quite evident he was still searching. The dispatcher then asked George for his name and where the police, now on their way, would find him. Would he be near his truck? When asked where his truck was parked, George wasn’t sure of the address. The dispatcher offered a solution. What about in front of the mailboxes, alongside the clubhouse? George agreed, but in the end, he wanted no part of that, because he interrupted the dispatcher. “Actually, could you have them [the police] call me and I’ll tell them where I’m at?”

“Okay, yeah, that’s no problem.” Little did the dispatcher know that this was George’s cue to continue his search. At no time did the dispatcher ask him for a physical address.

During the reenactment, however, he told a completely different story. In the video, he said the dispatcher asked him, “Where did he go, which direction did he go in?”

George answered, “I don’t know, I lost… ‘cause he cut down here and made a right. I guess it’s TWIN TREES LANE.” He goes on to say the dispatcher asked him if he could see the boy. He said he couldn’t. He claimed the dispatcher asked him to get somewhere where he could see him, but that’s not true. He was asked no such thing. Instead of backing out of the clubhouse spot like he told the detective on the video, in reality, George was desperately seeking Trayvon. And he knew the name of the street he turned on.

CLICK MAP TO ENLARGE

George Zimmerman Police Call w. Time Stamps and Notes

George Zimmerman video reenactment

END OF PART 1

In the second part, I will explore the shooting. How close to the truth was George?

Former Sanford Police Chief Speaks Out

This is a statement issued by former police chief Bill Lee:

Statement from Chief Bill Lee

Wednesday, June 20, 2012

It is disappointing that, in spite of his steadfast commitment to fairness and waiting for the results of a review of the Sanford Police Department and its investigation of the Trayvon Martin case, City Manager Bonaparte has chosen to exercise his rights under the employment contract to terminate my employment without cause.

I continue to stand by the work performed by the Sanford Police Department in this tragic shooting, which has been plagued by misrepresentations and false statements for interests other than justice. As the case progresses through the justice system, the evidence will show that our investigation was a proper effort to find the truth and follow the law. This has already been validated by evidence that has since become public as well as by comments from the special prosecutor.

 I appreciate the opportunity I have had to serve all the people of the City of Sanford, the City Employees and especially the men and women of the Sanford Police Department.

In a statement released by Sanford City Manager Norton Bonaparte earlier in the day, Bonaparte said he relieved the chief of his duties (meaning fired) because he had “determined the police chief needs to have the trust and respect of the elected officials and the confidence of the entire community.”

I spoke to two police officers in Sanford. Both said that you wouldn’t find a better or more intelligent person than Bill Lee. Notwithstanding, I can understand the city’s predicament, but if cans of worms are to be opened, let’s open them all.

I think it’s interesting to note that Norton Bonaparte was fired from the same position (as city manager of Topeka, Kansas) for mishandling a theft perpetrated by city employees. Apparently, “Bonaparte handled it as a personnel matter and meted out punishment to the employees rather turn the case over to law enforcement authorities. He didn’t inform council members of the case or the details until they demanded information.” (See: Topeka no stroll in park for Bonaparte and Editorial: Theft should be investigated)

No one is above the law, and no one is perfect. Pointing fingers sometimes point back and, sometimes, good people are let go for good reasons.