They may have released the phone records (in fact, they have to have released them by now, I guess) to defense, they just don’t have to release them to the public. But that is really the only thing left. At this time I don’t think the prosecution can argue that anything explosive other than phone records that they may be holding back is in error or that it doesn’t contradict the requirement of timely discovery.
Here’s the section of text you bolded:
based on certain valid grounds which have to pass muster with the judge, but they have the option of challenging or passing on such jurors, and they can decide what to do based on whether they think a given juror would be predisposed to favor their case or not.
That’s true, but it fails to answer the question about how the prosecution will have an easier time than the defense will, especially since the “certain valid grounds” include evidence of bias. A juror who voices an opinion indicating bias against the accused can be rejected easily.
Please explain, specifically, how you feel this framework will make it easier for the prosecution to obtain pro-prosecution witnesses?
I suppose that’s true, but the point of legal theory is that it’s meant to be followed, so when real life refuses to follow correct legal theory at one stage, other stages of the criminal procedure process are in place to correct the issue. The jury is presumed to follow the judge’s instructions, but if they don’t, the judge is empowered to correct that miscarriage by changing a conviction to an acquittal for insufficient evidence. A judge in turn may be too fearful of political fallout to follow correct legal procedure, so we have an intermediate appellate court, and a state supreme court, each more insulated from the political pressures and thus presumably more able to correctly apply the law. A conviction founded upon a lack of legally sufficient evidence is a violation of due process, so if each stage of the Florida court system were, incredibly, to fail to apply legal theory because of the pressures of “real life,” then the federal courts, manned by judges with lifetime appointments, can act to correct such an injustice.
Ultimately, of course, we can imagine some scenario in which the entire judicial system, state and federal, is too cowed to act in a legal manner. But I find that kind of speculation to be essentially as useless as asserting that Zimmerman may go free because the CIA’s super ebola bug will accidentally be released in Miami, and create a post-apocalyptic world similar to “The Stand” by the time the trial date arrives. It’s possible, in other words, but so remotely unlikely as to not warrant serious speculation.
Why would you suppose that?
Because I’m not talking about people who explicitly show evidence of bias. I’m talking about people who have other potential grounds for dismissal, e.g. people with some tangential connection to someone connected to the case. Both the prosecutors and the defense can decide to either challenge or not challenge such people. And they would exercise their discretion based, in part, on whether they think this juror is likely to help or hinder their case.
So, for example, I think the prosecution would be unlikely to challenge such potential jurors if they were African Americans, and the defense would be more likely, and so on. But the defense is more constrained, for political reasons.
Well when you put it that way of course it sounds silly. But I’m speculating at one specific possibility, and it seems realistic to me.
Specifically, again, that the prosecution uses their discretion over juror challenges to produce a jury which contains the maximum number of African Americans, while the defense is constrained in the extent to which they can go in similarly trying to produce a jury which minimizes the number of African Americans. It seems obvious to me that - for whatever reasons, justified or not - attempting to minimize the number of African Americans on a jury is looked at much much harsher than attempts to maximize their number. And should this happen, I don’t see what entity would “correct” it and on what grounds.
In what way is the defense constrained to a greater extent than the prosecution?
If it does happen, the entity that would correct it would be an appeals court, based on violation of the Batson rule.
I think you’re putting too little faith in the defense’s ability to pick up on ques that show bias in potential jurors, and placing far too much weight in your belief that African American’s will convict regardless of the evidence.
The correction comes from the judge setting aside the verdict, or from the appeals court. If a jury convicts with a lack of sufficient evidence, it will likely be overturned at some juncture.
As I keep pointing out, attempting to maximize the number of African Americans on a jury does not provoke nearly the same level of outrage as attempting to minimize it.
I don’t know if Batson applies to non-peremptory challenges. But regardless, I think an appeals court is subject to the same societal influences as any other.
On a related note, has there ever been a Batson challenge based on too many minority members of a jury?
The problem with this statement is that the rules of criminal procedure do not include a test for the amount of outrage produced. If challenges of any type are made, they are made on the basis of the record.
I don’t know what you’re imagining, but I’ll ask you again for a specific example. How, in detail, would this “level of outrage” work in practice?
Of course. Many. To pick one, in 2008, the Second Circuit confronted precisely the question you raise: the purposeful exclusion of white jurors in an effort to gain African-American juror majority. In US v. Thompson, 528 F. 3d 110, the Court of Appeals confirmed that this practice was not permissible:
As above, that’s very nice in theory.
Of course, in theory people don’t get indicted for second degree murder based on the amount of outrage produced. And yet, here we are …
I think lawyers for the opposing sides will be influenced regarding whether to do things based on whether they would trigger charges in many circles that they are engaging in racist tactics. And having done so, I think the same applies to judges.
No, you don’t know that to be true. Zimmerman was charged with second degree murder, but since the trial has not yet happened, you cannot say that he was charged because of the level of outrage. He could have been charged based on the level of evidence, with some of that evidence as yet unrevealed to the public.
Now, what you are picturing certainly happens on rare occasion – as it did with Mike Nifong in North Carolina. But as I described above, while a decision like that can start with one person, eventually the other checks and balances of the judicial system will come into play.
You’re welcome to your opinion – but as each additional layer of the judicial system is engaged, the likelihood of it, too, being too cowed by the prospect of seeming racist to do the right thing gets smaller and smaller.
Anything is possible. But it seems pretty clear to me, based on the sequence of events and experience following politicians, that this is how things went down.
The Duke players lucked out. In their case what saved them was not the lack of evidence against them. That wouldn’t have been enough for them. They were saved by the fact that they were facing a live accuser, who had a detailed story to tell, and that story collapsed under the weight of contradictory evidence. In this case, there are likely to be a lot of holes that everyone can fill in with their own suppositions, based on inferences from other evidence. As is going on now, in this thread for example.
I don’t think it’s always as blatant as that. But it creates a strong bias to one side of any given decision.
[BTW, I should note that I’m not claiming anything I’ve written is more likely than not to happen. Only that it’s a reasonable possibility, and I think the level of confidence that many people have in his vindication is misplaced, and does not follow from their belief in his actual innocence.]
are you under some misguided notion there is a stadium full of jurors to pick from? It’s already been pointed out that the ratio of potential black jurists is low. The jury pool is not very large to begin with so it would be statistically impossible to stack a jury this way.
As far as the Duke case goes, it helped that the whole party was taped.
I think the most interesting thing in the phone records is if the call times corroborate
or impeach Zimmerman’s or DeeDee story. The phone 911 and NEN records say that there is only 80 seconds between when Zimmerman disconnected the NEN call and the first 911 call came in. That doesn’t leave much time for Zimmerman to be stalking. The important thing is whether DeeDee and Martin phone records corroborate DeeDees story. If she wasn’t in communication with Martin at times she said she was, then her credibility will take a hit.
I am seeing more like 150 seconds
7:13:41
-7:16:11
0:02:30
[QUOTE=Shodan;15792671gun contained in Zimmerman’s (or Dee Dee’s, or someone else’s) phone records, the prosecution has not released it to the defense.
[/QUOTE]
To point out the obvious: The defense doesn’t have to wait for Zimmerman’s phone records, since the records belong to Zimmerman and they should have had them from the get go. If there is anything in there that could convict Zimmerman, then O’Mara has been lying to public. I think O’Mara could lie, but that would be a stupid lie. I think O’Mara is too clever for that.
My responses have been to your questions. That makes them relevant to the thread. While I don’t believe your confusion will keep me up at night, I’ll try again. Corey originally provided enough information to the judge to get GZ charged. There were several well-known lawyers who trashed Corey’s effort but the judge let it stand as is. Corey did not need to provide any more information to accomplish that goal, ie charging GZ with 2nd degree. Information seems to have been withheld.
You say you can understand that Corey might hold back excupatory evidence. That would be an illegal act but Corey does want to win. For her reputation and for her new best friends, the Martin family.
You’re confused as to why Corey would withhold evidence that would help her case. Did you have something specific in mind? Withholding a witnessess name who saw or even videotaped the whole event, perhaps? Again, Corey wants a win. Any information that Corey has, and the defense doesn’t have, would make it more difficult for the defense to mount a proper defense. That would make Corey’s goal of getting a conviction that much easier.
Is Corey withholding evidence? I have no idea what she hasn’t released. I know the defense is asking the court for more information.
I’ve already noted that I’m not suggesting that the whole jury or even most will be black. But the more there are, the higher the likelihood that there will be some jurors who are predisposed to find guilt in this particular case.
I don’t know how big the jury pool is. But there is obviously some wriggle room. There are people who make a living helping shape jury compositions.
In the OJ case, it was reported that a key mistake by the prosecution was to allow the jury to be stacked with African American women. It was said that this was a conscious decision by the prosecutor, as Clark believed that black women would identify with the victim’s history of abuse, while the defense allowed them in based on the correct assessment that racial identity would trump gender.
I don’t know that that’s correct, but there was a lot of evidence in that case. But there’s a lot of evidence in this one too. But it’s a lot easier to contradict a story that’s put forth upfront and has to match the evidence, than it is in a situation where the story for guilt is unknown at the outset and can be tailored to match the evidence.
The other thing that sank that case was that Nifong had committed a lot of other misconduct, e.g. publically vilifying the defendents, and skewing the line-up, and these provoked a backlash. Had he been more careful and simply pressed forward deliberately with a weak case he would have done a lot better.
All that said, had the case gone to trial there is a chance that those guys would have been found guilty too. And there too, it would have depended on the jury composition. If you look at the SDMB thread on that subject, you’ll see that some of the same people most convinced of GZ’s guilt now were also the strongest supporters of the Duke accuser then.
Serino’s report says 80
19:15:23
19:16:43
https://docs.google.com/open?id=0Bzn-XlBIM9nGTW9Mc1hLd2RDQlk
I had this discussion before. The other posters thought Singleton screwed up, but the prosecution hasn’t bothered to amend the timeline.
So to summarize you have no useful information or insights to contribute on this topic, but you seem to be compelled to post.
I think what Donald West wrote gives some insight. Corey is gaming the discovery rules, by sending a zerox of the photo, when the actual photo is much more damaging to the prosecution case and being slow to produce exculpatory evidence.
The only reason I can think to withhold evidence that helps her case is that it is weak and she wants to give O’Hara and Know less time to pick at it.