Special Prosecutor Angela Corey has done it again. But before we dive into yet another fetid prosecutorial swamp, it would be very much worth your while to stop by The Conservative Treehouse, where they continue to do first-rate work on exposing the bewildering web of connections between the usually suspect left wing organizations and individuals involved in constructing and maintaining the Trayvon Martin Narrative. It’s very much eye-opening, and as the article suggests, with so many people and so much money involved (oh yes; large sums indeed), these growling dogs aren’t going to release this particular bone anytime soon.
Also worth your time are two posts by my former Confederate Yankee co-blogger, Bob Owens. The first concisely explains why Martin did not bleed on Zimmerman, and the second, for those who may have missed it, equally concisely explains the dynamics of drawing and using a concealed handgun while pinned to the ground.
In this article, I’ll also be quoting from and referring to three excellent and professional articles, all written by lawyers of note: one by Professor William Jacobson at Legal Insurrection, and two by Denver defense attorney Jeralyn Meritt at TalkLeft, here and here.
Here is the Florida perjury statute applicable to this case. Those interested in reading all of the statutes relating to perjury—Chapter 837 of the Florida Statutes —can take the link and be satisfied that I am not leaving out relevant law.
837.02 Perjury in official proceedings.
(1) Except as provided in subsection (2), 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, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) Whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding that relates to the prosecution of a capital felony, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Knowledge of the materiality of the statement is not an element of the crime of perjury under subsection (1) or subsection (2), and the defendant’s mistaken belief that the statement was not material is not a defense.
Perjury is much misunderstood. As the statute makes clear—and in this case, arguably only 837.02 (1) applies; the possibility of the death penalty (making the legally unlikely assumption the case ever actually goes to trial) is remote—to commit perjury, one must:
(1) Be under oath;
(2) Make a false statement;
(3) They must believe, at the time the statement is made, that the statement is false; and
(4) The statement must be made in an official proceeding, ie: court.
Notice also that the statue requires that the false statement be “material,” which essentially means that it must actually have some real, definable bearing on the issues of the case. If a female witness, embarrassed about recently gaining some weight, for example, underestimates her weight by 20 pounds, even though she knew that figure to be incorrect, it would not be perjury unless a precise telling of her weight was material to that case. Likewise, inadvertent mistakes, such as misstating one’s address or inverting times or places, is not perjury, even though, by the strictest definition, it may be false.
The difficulty for the prosecution in any perjury case is proving what the defendant believed. This is normally done by presenting clearly factual evidence that shows the defendant had to have known that what they said was false at the time they said it. As a result, perjury charges are filed far less frequently than the public imagines. For example, an alibi witness who claims he was driving in his car with the defendant at 10 AM ten miles from the scene of the crime on the day in question might be proved to be lying by the revelation of ATM camera footage showing him alone in his car on that date at 9:57 AM only three blocks from the scene of the crime. As I’ll demonstrate in this case, there is no such evidence and no such clarity.
Remember that a charging affidavit must not only include the specific crime or crimes the defendant is supposed to have committed, but must provide evidence sufficient to establish probable cause. Probable cause, once again, is facts and circumstances that would convince a reasonable judge–in the case of an affidavit–that the person to be charged has in fact done things that fulfill the elements of the crimes charged. The affidavit must be complete. It cannot leave out pertinent information that might indicate innocence. The affiant swears to tell the whole truth. As regular readers may recall from Update 2 the special prosecutor’s affidavit charging George Zimmerman with second degree murder did not fulfill the elements of the offense—it did not establish probable cause—and the affiants lied—primarily by omission of evidence that would have established Zimmerman’s innocence, and also by stating that Martin was not breaking the law despite knowing that he was under the influence of marijuana (under Florida law, any amount suffices).
The cover page, the information, sets forth the specific statute.
The first page of the affidavit does establish that the alleged crime took place during an official proceeding and that Shellie Zimmerman, who testified by phone, was under oath.
The second page lists excerpts of the testimony done that day (April 20, 2012) where we learn that Shellie Zimmerman did not know how much money was in the Internet account. It is already clear that the attorneys and judge were treating the Zimmerman’s normal financial resources (savings, checking, etc.) separately from the Internet account about which everyone was clearly aware. The affiant, investigator T.C. O’Steen establishes that Shellie did not know how much money was in the Internet account, and presents no evidence to suggest otherwise. However, what O’Steen omits is the portion of the transcript that shows that Shellie testified that her brother-in-law probably did have that information, and she offered to bring him to the phone, an offer of which the prosecution did not take advantage.
The third and fourth pages are excerpts from phone calls between George and Shellie Zimmerman while he was in jail awaiting his initial bond hearing. They portray the Zimmermans speaking guardedly and trying to be careful not only how they speak about money, but that Shellie not carry too much cash “safety issue, you know,” George tells Shellie. They discuss financial issues and how to deal with them.
The final page consists of O’Steen speaking about his contacts with the Zimmerman’s credit union. O’Steen, throughout these pages, only establishes that the Zimmermans spoke about transferring money from one account to another and about how to deal with their bills and other obligations. O’Steen does not even mention, let alone fulfill, the most important element of the statute: HE DOES NOT IDENTIFY ANY STATEMENT MADE BY SHELLIE ZIMMERMAN AND PRESENT EVIDENCE THAT ESTABLISHES PROBABLE CAUSE TO BELIEVE IT WAS FALSE AND SHE BELIEVED IT TO BE FALSE AS SHE MADE IT. Incredibly, once again, the special prosecutor has arguably lied—by omission; the selective editing of the transcript—on an affidavit and did not fulfill the elements of the offense.
This is plainly stunning. During my police service, any competent police supervisor, or any competent prosecutor reading this affidavit would be asking of the investigator submitting it: “Where’s the PC? What did she say that was false? How do we know she believed it to be false? Where’s the evidence?” Even if a police supervisor let such a defective affidavit find its way to the prosecutor, surely any competent prosecutor would ask the same questions and demand they be answered, in black and white on a new and complete affidavit, before proceeding. That Angela Corey would allow such a document to be submitted to a judge, particularly understanding the scrutiny it will surely receive, is almost inconceivable.
LYING BY OMISSION:
Here’s the transcript excerpt from page 2 of 5 of the affidavit. This exchange is between assistant special prosecutor Bernard de la Rionda and Shellie Zimmerman:
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.
Now consider the actual transcript. I’ll render the sections the SP left out in bold:
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: Who would know that?
A: That would be my brother-in-law.
Q: And is he — I know he’s not in the same room as you, but is he available so we can speak to him, too, or the Court can inquire through the State or the Defense?
A: I’m sure that we could probably get him on the phone.
Q: Okay. So he’s not there now.
A: No, he is not, sir.
Q: Do you have any estimate as to how much money has already been obtained or collected?
A: I do not.
Q. Okay. You haven’t talked to your brother-in-law in terms of just bare amount of how much money?
A. No. No, I have not
Q. Okay. And how long has that website been in existence, ma’am?
A. I do not know. I have not been with my husband since he’s been in hiding. I do not know.
Q. Okay. So you mentioned your husband was in hiding. I understand he left the state, is that correct?
A. That’s correct.
Q – Okay. And did you continue to have contact with him while he was out?
A. Yes, every day.
Q. And that was every day?
Notice that immediately after learning that the brother-in-law can come to the phone, de la Rionda immediately loses interest and does not follow up with the obvious request that he come to the phone. Here’s Professor Jacobson’s take:
The deleted transcript language certainly gives a very different context to the issue of whether Shellie knew how much was available or had an “estimate.” She offered to get the person who knew on the phone, but the prosecution didn’t take her up on that.
Indeed it does. Jeralynn Merritt adds:
While the taped jail calls make it clear Shellie Zimmerman transferred funds from George’s credit union account to her credit union account, it’s not clear to me that she, as opposed to George’s brother, was the person who moved the money from Paypal to Zimmerman’s credit union account. It could have been either of them, or both of them, acting together or independently. The state never introduced documents from Paypal at the bond hearing, only statements from Zimmerman and his wife’s credit union accounts.
While Shellie Zimmerman knew the amount of funds in George’s credit union account on April 16, she may not have known the amount in the website/Paypal account on April 20 [the day of the bond hearing], which is what she was asked by the prosecutor, particularly since money was coming in every day and her brother-in-law may also have been able to move funds out of the Paypal account. She may not have checked the Paypal account after April 16. She may not have wanted to speculate and give an answer that was wrong.
It’s important to keep in mind that the prosecution did not do two very important things:
(1) Request that Shellie’s brother-in-law be brought to the phone to testify. Shellie told de la Rionda he was present and could be summoned to the phone.
(2) Use ellipsis “…” to indicate omitted material. This is particularly important and absolutely necessary for the first block of omitted text.
Ellipsis, for those who last struggled with high school grammar during the 1400s when I went to school, is three periods in a row used to indicate that some text is missing. This is not just the concern of a finicky English teacher. Legal language must be extraordinarily precise. Every lawyer knows the importance of ellipsis and uses it accordingly. That it was not used here is significant.
Professor Jacobson adds an additional, very necessary, point, quoting from Florida precedent on perjury:
This Court has held that statements alleged to be perjurious must be of ’empirical fact’ and not of opinion, belief or perception…. One of the essential elements of perjury in official proceedings is that the person making the statement does not believe it to be true… The questions posed to elicit perjured testimony must be asked with the appropriate specificity necessary to result in an equally specific statement of fact.
Cohen v. State, 985 So.2d 1207 (Fla. App. 3 Dist. 2008)(citations omitted).
This merely brings the failure of the special prosecutor to point to any specific perjurious statement by Shellie Zimmerman, and the SP’s failure to produce factual evidence to prove why that statement was false, into sharper focus.
But what about the jailhouse conversations between George and Shellie Zimmerman? Aren’t they evidence of something illegal? Ms. Merritt addresses that issue:
The state’s complaint at the bond revocation hearing was not that Zimmerman omitted something from his testimony, but that he didn’t correct his wife’s testimony after she testified they had no other assets they could easily liquidate to make bond, that she didn’t know how much money “currently” was in the website account, and could not estimate how much had been raised by the website in total. There was also argument by his lawyer based on the testimony of his relatives that Zimmerman and his wife had no money to post a bond, and the family was trying to raise money. There was no testimony by Zimmerman about money at his bond hearing. He took the stand only to state an apology to the Martins and the subject of money never came up during his testimony – not even on cross-examination by the prosecutor.
There was no illegal activity discussed in the taped jail conversations submitted to the Court at the June 1 hearing. The funds were lawfully acquired. There was nothing illegal in Zimmerman’s instructions to his wife to transfer funds from one account to another or to disperse the funds. He had every right to put the money to whatever use he wanted. He had even stated on his short-lived website that he would make the final decisions as to how to spend the money.
On a second affidavit in this case, the special prosecutor has not only failed to fulfill the elements of the offense charged, they have arguably lied by omission, in this case by plucking an entire portion of the exchange between Shellie Zimmerman and Bernard de la Rionda from the transcript without indicating by means of ellipsis it was removed. This is even more egregious because perjury, under Florida law, is a very specific statute requiring very specific, factual proof, proof that is simply not in the affidavit.
The prosecutor has made much in the court of public opinion of what appears to be George and Shellie speaking “in code” about their finances on jailhouse recordings. Let’s remember that those recordings were done in the several days prior to the April 20 bond hearing when George Zimmerman was in jail awaiting that hearing after his arrest. I’ll explain the importance of this shortly. By suggesting that the Zimmermans were speaking in code, the prosecution is suggesting that this is somehow evidence of guilty, criminal minds and they were therefore engaged in something illegal. Nonsense.
By April 20, 2012, the lives of the Zimmermans—and of their families—had been turned upside down. Like most of us, the Zimmermans lived paycheck to paycheck. Suddenly, under an avalanche of credible death threats, they were forced into hiding, their jobs and any source of income lost, any possibility of a future uncertain at best. Suddenly facing life in prison, and with a lawyer only one week on the job, everything was confusing and unsure. They had no idea who they could trust, but they could be certain of a few things: they still had bills to pay, financial obligations to meet, daily life went on, and any talk of large amounts of money in the jailhouse setting—they surely knew everything they said would be overheard and/or recorded, thus their “talking in code”—would be very foolish and dangerous indeed.
As Jeralyn Merritt observed, the transcript of their phone calls reveals nothing at all illegal or even shady. They were people in horrible circumstances I can only pray none of us ever have to experience, trying to hold together some portion of their normal lives and hoping to have a future while protecting their very lives. Could even a jail guard or anyone in a jail learning of large amounts of money present a threat? Of course, and the transcript shows George’s rational concern about Shellie carrying large amounts of money in public. Likewise, transferring money from one account to another and paying bills is completely legal. The inclusion of this information in the affidavit is yet another lie, perfectly legal and normal behavior presented as evidence of crime, a distraction intended to cover the prosecution’s lack of probable cause, a ploy to distract the judge who is, like most judges, not used to prosecutors lying to him and who therefore doesn’t think to examine their submissions with a magnifying glass.
So why didn’t de la Rionda do a better job during the hearing? He didn’t ask questions that would have clarified precisely who knew what when. Given the opportunity to speak with the brother-in-law who could have given him the questions he asked of Shellie who did not know the answers, he passed. With George Zimmerman on the stand, he didn’t even try to raise the issue. We’re not talking about advanced, Perry Mason-like skills, but the bare basics of minimally competent courtroom practice.
One possibility is that de la Rionda, as in the Dee Dee interview of Update 11 was concerned far more about maintaining and defending the narrative than the truth. He was far more concerned with trying the case in the court of public opinion than in reality.
Another possibility also very much on display in Update 11 was that de la Rionda is simply in over his head. He’s not competent to handle these matters and was accordingly poorly prepared.
The possibility I consider more likely is that the special prosecutor was trying to construct a perjury trap. The jailhouse phone calls, remember, were made in the several days prior to the April 20 bond hearing. The SP had the recordings and transcripts. Such things require no warrant. All inmates in jails are informed that they have no reasonable expectation of privacy in their communications and that they will be audio and videotaped without warning or notice, the only exception being communications with their attorney which are, by law, privileged.
Considering what we know of the mindset of the prosecution and the sensitivity of Angela Corey herself to the merest hint of criticism or opposition, I can only imagine that those phone calls did seem like some kind of sneaky, illegal dealing by the Zimmermans. You may notice, gentle readers, that I am giving the prosecution the benefit of the doubt. More cynical commentators might suggest that the prosecution was using the arrest of Shellie in an unprofessional, unethical and even illegal ploy to harass and/or pressure George Zimmerman to accept some kind of unfavorable plea bargain, which they may see as the only way to salvage anything outside the court of public opinion.
With this scenario in mind, one would expect the prosecution to ask of Shellie only that which they thought they needed to make a perjury case. They had no interest in discovering all of the facts about the Internet account and its balance, so they didn’t bother to ask. That wouldn’t help them to nail Shellie. They baited a trap and asked only those questions they thought necessary to trick Shellie into falling into it.
The problem is, yet again, the prosecution seems to have no idea of Florida law, or at least believes they need not adhere to it. Unless they have some amazing, hidden, specifically factual evidence that will prove beyond any doubt that a specific statement Shellie Zimmerman made was a lie and that she believed it to be a lie, they have no case. But even if they did have such amazing evidence, they would still have to identify at least one specifically false statement made by Shellie Zimmerman, and they have failed to do even that. They seem to be brazenly making it up as they go along and hoping no one calls them on it. Or perhaps they simply think themselves untouchable.
As I wrote in Update 10 I remain confused by the behavior of the judge in revoking George Zimmerman’s bond (a new hearing on bond is scheduled for June 29, 2012). I’ve little doubt the prosecutor is doing whatever they can to inconvenience and harm George Zimmerman and anyone associated with him, or as I pointed out in Update 9.4, anyone that disagrees with them, such as Harvard Law Professor Alan Dershowitz. Jeralyn Merritt shares those concerns, and I recommend you read her article on that and other matters. Her take is essentially that the Zimmermans weren’t lying to anyone, and that whatever confusion occurred was a result of a brand new attorney on the case for only a handful of days, and the expected uncertainty of a couple thrown headfirst and without warning into the thicket of the criminal justice system. I suspect she’s absolutely right.
Remember that the transcripts of the bond hearing and other hearings indicate clearly that everyone–judge, prosecutor and defense—were completely aware of the Internet account and were considering–on a continuing basis—how to deal with it. There was no concealment, no attempt to hide the existence of that account or its size. The two men who could have told the court its balance were at hand, but weren’t asked by either the prosecution or the judge. In fact, absent an hourly call to determine its exact size at that moment–by its very nature the account was continually growing–one could not provide an accurate balance, a balance that would hold for more than a short time. When the judge and the prosecution had a chance—in open court–to determine the amount of money in that account, again, neither availed themselves of it. George Zimmerman, who did not testify at all about financial matters, was under no obligation to speak. He was not obligated to pipe up whenever he thought anyone was incomplete or was not speaking with perfect accuracy. He cannot be held accountable for not speaking when he had no obligation to speak, indeed, had an unassailable legal right not to speak. That said, I’ve little doubt that if he was asked, he would have cooperated.
Underlying all of this, and surely contributing to the Zimmerman’s actions (or inactions), was the fact that the court was not only completely aware of the Internet account from the start, but was constantly treating that account and the other, normal financial assets of the Zimmermans—such as they are—as two separate matters. As does Ms. Merritt, I suspect the majority of whatever blame should attach to the defense side is due Mr. O’Mara. Yet considering he had very little time to be completely up to speed on a case made incredibly complex by the need to simultaneously try it in public and the courts, this may well be understandable and excusable.
I suspect—I hope—that at the next bond hearing, these matters will be quickly and easily explained and that George Zimmerman will again be granted bond. I’d be quite interested to hear what Mr. Dershowitz has to say about this matter, and will attempt to forward a draft of this article to him for his comment (NOTE: as this article is posted, I have yet to hear from Prof. Dershowitz).
There seems to be no justification—at all—for the perjury charge against Shellie Zimmerman, and the prosecution has presented no probable cause and no evidence to support the charge in the affidavit.
The prosecution cannot claim silence as a lie. They cannot neglect to ask specific questions and later claim that her failure to answer questions they did not ask (that she should have read their mind and anticipated?) was perjury. Unless they can prove that any statement she made was a lie, and that she believed it to be a lie even as she made it—and they have identified no such statement and made no such offer of proof–their arrest of Shellie Zimmerman is a cruel and arrogant abuse of power and the public trust and an unethical attempt—at best—to harm and manipulate George Zimmerman and public opinion. Ethical prosecutors handling such a public case would commonly wait until the conclusion of the primary case to file such a charge to avoid any appearance of impropriety or undue influence. I suspect another reason they did not wait is they feared the matter might come up at trial and the Zimmermans–if asked relevant questions–would testify truthfully, obliterating a perjury charge.
Angela Corey is looking more and more like Mike Nifong.
A GENTLE NOTE TO GENTLE READERS:
While I appreciate the passion and dedication expressed in the more than 300 comments about Update 11 I ask that you try to keep your comments focused on the specific issues raised by each individual post. By all means, comment—I appreciate it very much; it’s a large part of why we’re here—but let’s try to focus just a bit more clearly in the future. This is going to be a lengthy case and we’ll have more than enough time and space to explore every aspect of it. We don’t need to throw everything—including the kitchen sink—in at every opportunity, no matter how much fun that might be!
Thanks for reading, and for your invaluable insights!