Voir Dire Straits

George Zimmerman enters the court room on the fifth day of jury selection for his trial in Seminole circuit court in Sanford, Fla., Friday June 14, 2013. Zimmerman has been charged with second-degree murder for the 2012 shooting death of Trayvon Martin. (Gary W. Green/Orlando Sentinel, Pool)

A lot could be said about the first week of jury selection in the George Zimmerman trial, but I will spare you most of the somewhat boring and quite tedious details. I must tell you that it’s an intense study into the human psyche. Some of those interviewed seemed to beg for the chance to sit on the jury; as if to say (quietly) OUT LOUD that there could be a book deal down the road. At least, that’s the perception made by some of my media peers.

There’s also the matter over knowledge of the case. No one in Sanford, let alone all of Central Florida, is expected to be mentally blind to the tragic shooting death of Trayvon Martin by George Zimmerman. To deny knowing anything about it is to be so out of tune with current events, it’s close to incompetency. Or it’s a giant lie — obviously knowing more than one would admit to. Either way, this is the type of pre-trial publicity questioning that should qualify or disqualify a prospective juror. It’s like sifting through the weeds of a garden to get to the root vegetables; like carrots hidden under a lush layer of rich soil, waiting to be plucked and added to the recipe now simmering inside the Seminole County Courthouse.

When making a good stew, one must be very careful about the ingredients added. Too much salt is not good. Neither is too much pepper…. which leads me to a working segue — one of the potential jury prospects — E-7, a white male in his 50s with salt & pepper hair and a goatee. Soon after questioning began, I turned to the person to my left, a woman from ABC network news, and whispered that I recognized him from somewhere; like we had met or something. I couldn’t place him then and still can’t.

Initially, I thought he was quite smart and open. He seemed pretty square and strong in his tenets. I noticed he was a bit adversarial while facing Bernie de la Rionda, but he said he liked playing the role of devil’s advocate. OK, fine, but when Don West questioned him, I began to feel a bit leery and said so in my notations. I wrote that he was a bit cocky and sure of himself. Something about his earnest sincerity began to unravel. Here’s a guy who stated that he watches both FOX and MSNBC. Open minded? At first glance, yes, it appeared that way, yet he paid no attention to either side. That didn’t compute in my head. He was someone, I wrote, who says he knows nothing, but he “knows too much, perhaps. Or a know it all.”

The final thing I wrote was “I don’t think so,” meaning, he will not sit on the jury. 

When he left the courtroom after questioning, I was surprised when the judge called him back to ask about a comment made on Facebook. Did he write it? No need to explain why. Just say yes or no. He admitted to it and I knew right then and there he was doomed. This man, Jerry Patrick Counelis, is a pathetic human being. Sick. Everyone from both sides wants this to be a fair trial. Counelis tried to infiltrate the jury; to force his pro-Martin agenda on everyone else. Had he been selected, it would have been a terrible blow to justice.

Two days later, Counelis returned to the courthouse to express his concern over the lack of anonymity and privacy during the selection process. Huh? He was only happy to be questioned publicly Wednesday after leaving the courthouse. He gladly appeared on local and national television later that day and night and he has concern over WHAT? When I stopped for coffee at my local 7-Eleven on Thursday morning, an employee told me he was interviewed right in the parking only the day before. Because he protested loudly at the courthouse on Friday, kicking and screaming and attempting to get back to the jury room, he was trespassed until the end of the trial. In my opinion, a trespass was not enough. Instead, the man should have been arrested on the spot and held without bond until the end of the trial; then tried in criminal court. On what charges? Whatever could legally be thrown at him. He is the epitome of social immorality. Thankfully, he was caught by someone from the defense side and was stopped dead in his tracks. Imagine the dire consequences…

On Thursday, E-81 took center stage. She was an attractive woman who told de la Rionda that she thought Zimmerman was innocent. One of the first things that caught my mind was a simple statement that came out of her mouth. Trayvon Martin wasn’t beat up like George Zimmerman. He was dressed like a street fighter. Duh… he only had a bullet in his heart.

She made up things as she went along. Zimmerman had blood on his clothing. Down his collar and on shirt. Trayvon was a pot smoker. Guns. Street fighting. Parents weren’t aware he was going down the wrong path. George was just doing his job at neighborhood watch. Drugs made Trayvon aggressive. George was protecting his neighborhood.

She told de la Rionda she wouldn’t be able to erase it from her mind, which was pretty well made up. She told him she was quite educated. I laughed under my breath. Every American has a right to protect themselves. The more armed people; the better. She admitted she wanted to donate money to the Zimmerman defense, but didn’t.

When O’Mara took over the questioning, she mellowed to a good extent. Where she had been more adversarial to de la Rionda, she was amenable to the cordial defense attorney. When prompted, she said she could follow evidence and court instructions. If Martin’s alleged street fighting is “not presented at trial, she would not consider it,” she added. She said she had “no real concerns about leaving opinions out of the equation,” I didn’t believe her one bit and made note of it. 

Baloney! She sways in the breeze, but is fervent in her beliefs. I am convinced of it.

She was summarily dismissed later on.

This leads me to a very interesting and important part of jury selection. How many strikes does each side get? When we broke for lunch that day, someone sitting on the public side addressed the possibility that the defense was forcing the state to use one of their strikes on E-81. After all, she seemed to be more neutral by the time O’Mara was finished questioning her, but was she, and did it really matter? A local legal analyst said that the Defense had the State on the run, but was it true? Or was it merely another opinion formed by a criminal defense attorney turned temporary legal analyst?

In the state of Florida, one of the frequent questions concerns challenges from each side. This is directly from an e-mail sent out from the Court Services Administrator/PIO to all credentialed journalists:

Q. How many challenges does each side have in jury selection?
A. Because this charge is punishable by life in prison, each side will have 10 peremptory challenges and unlimited challenges for cause. Challenges are also commonly referred to as strikes.

Law.com describes peremptory as:

[T]he right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is distinguished from a “challenge for cause” (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial. The number of peremptory challenges for each side will differ based on state law, the number of parties to a case, and whether it is a civil or criminal trial. The usual phrasing used by lawyers exercising the challenge is “Juror number seven may be excused.”

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While I’m on a legal roll, let me continue by explaining why there are six jurors on this case:

Florida Statute 913.10 
Number of jurors. — Twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases. History.—s. 191, ch. 19554, 1939; CGL 1940 Supp. 8663(198); s. 87, ch. 70-339. 

The Sixth Amendment to the U.S. Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

In an 1898 ruling, the Court wrote, “a jury comprised of 12 persons, neither more or less” was a requirement. If that’s the law of the land, then what happened? Why six? In Williams v. Florida, 399 U.S. 78 (1970), the Court reconsidered the size of a jury and affirmed the criminal robbery conviction made by six people. The Court ruled that the Sixth Amendment says nothing about jury size. From hence on, it rejected the earlier decision and held that six was sufficient to satisfy the Sixth and Fourteenth Amendments, which, in part, states that:

[…] No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In 1979, the Court again visited the issue of jury size and unanimity. In Burch v. Louisiana, 441 U.S. 130 (1979), they found that Louisiana law which allowed criminal convictions on 5-1 votes by a six-person jury had violated the Sixth Amendment (along with the Fourteenth Amendment) right of defendants to a trial by jury. In a state criminal trial:

We thus have held that the Constitution permits juries of less than 12 members, but that it requires at least 6.  And we have approved the use of certain nonunanimous verdicts in cases involving 12-person juries… This case lies at the intersection of our decisions concerning jury size and unanimity… But having already departed from the strictly historical requirements of jury trial, it is inevitable that lines must be drawn somewhere if the substance of the jury trial right is to be preserved.

In other words, if a jury is to be as small as six, the verdict must be unanimous. Therefore, in Zimmerman’s case, a guilty verdict can only be rendered unanimously or not a all.

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I will have more to write about this case as the trial progresses. This coming week should prove to be much more exciting than the first one, although I do find the whole thing to be quite fascinating and educational.

There are questions I am asked during this tedious process I sometimes have trouble answering. One, for example, is about George Zimmerman. What does he look like in court? What are his expressions? I can tell you this. I sit behind the Defense. All journalists do. I cannot see George’s face unless he turns sideways. I occasionally put the live feed on one of my iPads, but it’s a battery drainer; however, I do have my spy, code name Pea Pod, who keeps me informed while I stare at the back of Zimmerman’s head. For those of you who cannot watch the trial, he is more animated now than he was during the hearings. He must be! Potential jurors are watching. He is taking notes and smiling. He is paying close attention to details. This is very normal. Jodi Arias was transformed into a librarian by her attorneys. During the Casey Anthony trial, her seat was adjusted to its lowest elevation so she would appear to be too tiny to have murdered her child. Poor, poor, Casey; sitting next to Cheney Mason, who was much, much larger. He put his arms around her to comfort her; squeezing her shoulder. He patted her hands as they rested on the table. Pity, pity, pity party.

In Zimmerman’s case, he pretty much has to fend for himself, whether you like him or not. He weighs over 100 lbs more than the day he shot Trayvon. The jury must be made aware of that. While he most certainly will never be a demure librarian, he will never be a cop or judge, either — something he aspired to be — no matter what the verdict.

And Trayvon? Whatever some of you may think, he was not a 6’3” monster weighing over 180 lbs, and the jury isn’t going to hear that he was.

See also: Daily Kos

Call Me A "Gagnostic"

 As a writer and journalist, I don’t particularly believe in gag orders, so when the second gag order motion was filed by the State on October 18, I had a feeling it, too, would be turned down, just like the first one on April 30. Sure, the first one was denied by a different judge, but the law is pretty clear about what a gag order is, and George Zimmerman’s defense team has not reached the brink of breaching the legal levee to a point of overflowing; when the public is flooded with pre-trial information that may possibly prejudice a jury down the road. Of course, this is assuming that the State passes its first hurdle — the ‘not yet filed’ defense motion for immunity. We won’t go there. Not now, anyway.

The definition of a gag order is quite simple. Law.com describes it as “a judge’s order prohibiting the attorneys and the parties to a pending lawsuit or criminal prosecution from talking to the media or the public about the case.” The description further states that a gag order “has the secondary purpose of preventing the lawyers from trying the case in the press and on television, and thus creating a public mood (which could get ugly) in favor of one party or the other.” A gag order would apply toward law enforcement officials and include all witnesses.

The second part of the description is intriguing because attorneys have been trying cases in the media since the first stone tablet announced something of legal merit thousands of years ago. Before then, it was grunt of mouth that spread the news, and I’m sure that, back then, there were lawyers that hung their slate shingles over cave entrances advertising their services. In those days, they probably wore custom-tailored saber-toothed fur ensembles to court instead of more mundane beaver skins.

Back to the present. The only thing that’s new about the George Zimmerman/Trayvon Martin case is that the Internet has evolved over the years. We didn’t see it during the O.J. Simpson era of the mid-90s because, unlike today, there wasn’t really a huge need for it. Cell phones were the size of bricks, they were very expensive, and most people were still content with their beepers, fax machines and copiers. I went online sometime in the mid-to-late-90s, but I was in information superhighway diapers until the early 2000s. That’s the way it is in the courtroom now because most laws regarding trial publicity were written prior to the massive explosion of the digital age. If we only go back four years, we witnessed it with the bombastic blast of information regarding the Casey Anthony case, the likes of which we’ve never seen. Thousands of documents were released to the public due to Florida’s liberal Sunshine Law. It wasn’t without problems, though. Case in point: If two different sized tires were found in the woods where Caylee was found, you’d better bet the public retreaded them and overinflated their minds to believe that Casey threw those tires there for a reason. They dissected everything. Why were those tires there? What was Casey hiding? Who helped her? Roy Kronk? God forbid that they might have been there since 2003. Yes, they became Casey’s tires, yet they never swayed the jury one way or the other. There’s a reason for that. They weren’t hers and they were never introduced as evidence at trial. Those woods had been used as a dumping ground for years. That’s the problem with evidence. It’s not always evidence.

Granted, the Zimmerman defense had been publishing all sorts of information on its site, the gzlegalcase, about their client and some of the evidence that’s been released to date, but it was nothing more than what’s been released to the public, anyway. The defense has merely been offering their own interpretations, and some conflicts with the way the State thinks. While the State has been very tight-lipped, that doesn’t mean the defense must play the same game. Most certainly, it doesn’t mean that we have to believe what anyone says, either.

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During the gag order aspect of the hearing on October 26, Bernie de la Rionda rambled on. At times, I found him to be inconsistent and somewhat disheveled, wordwise. He asserted that the defense Website had been somewhat unethical. Zimmerman & Company called witnesses liars and tried to bypass the media by offering their own version of the case instead of how the media might interpret it. I disagree. We are given the same information in discovery. We can write our own commentary. For instance, Zimmerman’s medical records indicate he may have sustained a broken nose during the fight with Trayvon the night of February 26. O’Mara clearly said it’s a fact and undisputed that his client’s nose was broken. I don’t have to believe O’Mara and neither do you, and that’s the whole point.

Discovery impacts potential jurors a heck of a lot more than anything the defense throws out, in my opinion, and no proof exists either way. His nose was broken, his nose wasn’t broken. You decide. Ostensibly, both sides will offer tons of rhetoric at trial. It’s the name of the game. There is one point where I may agree with de la Rionda. It’s when he commented about the defense site’s quote asking for donations from those who would do the same thing if they were in Zimmerman’s shoes. That’s pretty tasteless and crass, not to mention cold-hearted and grossly opinionated. SEND MONEY IF YOU THINK TRAYVON DESERVED TO DIE. Never mind that O’Mara’s job is to defend his client, not bark for money. If O’Mara has a fault, it’s that he can be overtly insensitive at times.

When O’Mara got up to explain why he had done nothing wrong to warrant the gag, I agreed with him until he asserted that the attorneys for Trayvon’s parents were using the race card. Yes, early on, it turned ugly in a racial kind of way, but O’Mara practically accused Benjamin Crump of inciting a race war. That’s just not true. I attended the National Rally for Justice on Behalf of Trayvon Martin in Sanford on March 22, and all I heard from the speakers, including Rev. Al Sharpton, was nothing but justice, justice, justice. Take it through the court system! That’s all they have been seeking. Not retribution. O’Mara claimed that Crump called Zimmerman a racist murderer and, I’m sorry, but I never heard that. If you can show me where Crump did, in fact, say it, I’ll eat my hat.

He also accused Crump and Natalie Jackson of being surrogates for the State. That’s not true, either, any more than saying that Robert Zimmerman is working for the defense. O’Mara claims that, as a surrogate for the State, Crump must be as bound to Florida Rule 4-3.6 as the immediate attorneys involved in the case. I disagree. Crump does not represent the State. His represents Trayvon’s family. Period. Even if a gag order were in place, it would have no bearing on him. I feel that the intent of this sort of strategy in the courtroom was to throw the judge off course. “They went thataway!” It didn’t work because Judge Nelson didn’t blink. She would not budge, and she often had to remind the defense and prosecution to stay on the road.

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I was fairly certain before the hearing began that Judge Nelson was going to rule against the gag order motion. While I had some problems with the defense, did anything ever rise to the level that I would consider iffy? No, but I can understand some of the issues at hand. For instance, what separates bloggers from mainstream media? The Huffington Post is a blog, but it’s the media. Daily Kos is as much a part of the media as the New York Times Website. So is NewsBusters. Then there’s Marinade Dave. We won’t go there, but my point is clear. There’s no single distinguishing line that separates media outlets, so why can’t the defense have a blog?

When O’Mara slightly belittled de la Rionda by reminding him this is 2012 and that law books are no longer on shelves, it reminded me of the final presidential debate on foreign policy, when Obama ridiculed Romney about the armed forces no longer fighting with bayonets. While I understood the president’s point, I knew he was wrong. Marines still carry bayonets. In that vein, not all attorneys are Internet savvy. The last time I checked, Office Depot and Staples still sell legal pads and writing instruments with ink, not just digital tablets and capacitative touch screen pens.

But now that we are in the midst of a technology frenzy that continues to skyrocket into the future, at a time when my six month old 3rd generation iPad is already obsolete, I question what good a gag order would do in today’s world. Just how would it impact a jury seven months into the future when we live in an age of lightning LTE speed? The old saying, today’s news is at the bottom of tomorrow’s birdcage, no longer applies because you can’t clean up birdpoop with the Orlando Sentinel dot com. This morning’s news is already old and who can remember what happened yesterday? Other than something that impacts us tremendously, like Superstorm Sandy, who cares? By the time George Zimmerman goes to trial, no one will remember O’Mara’s ramblings from last month, let alone care. Trust me on that one (but I do find it peculiar that nothing new has been posted on the gzlegalcase site [as of this writing] since October 23.)

Ultimately, Judge Nelson denied the motion because alternatives are available to the court to “ensure that an impartial jury can be selected. Those tools include a change of venue, a larger than normal jury venire, individualized voir dire, and stern instructions to the jurors as to their sworn duty to decide the issues based only upon the evidence.” I fully concur, but I think the best news to come out of her order was one simple, yet important, thing. Had a gag order been placed, other than Benjamin Crump, the media would have had no one else to talk to but Robert Zimmerman, Jr, and no one but the media and his own family care about him. And he only matters when there’s nothing better to report. Count your blessings. It’s good to be a gagnostic.

[Prior to the start of the hearing, I wasn’t sure I could get an Internet connection on my iPad. I did, but in the meantime, I asked Rene Stutzman, senior reporter at the Orlando Sentinel, if she had any paper to spare. She gave me her legal pad without hesitation. That was very kind and generous of her. Of course, I gave it back.]

Cross posted on the Daily Kos

A Snail's Pace

Jury selection is moving at the same pace as a race between a tortoise and a snail.

Hurry on over to Orlando Magazine and take your time reading my latest post…

Click the image

Feel free to add your thoughts.

THANK YOU!