The perjury prosecution of Shellie Zimmerman is a mirror image of the prosecution of George Zimmerman. In both cases, there was insufficient evidence to bring a charge, to say nothing of sustaining it. In both cases arrogant and overzealous prosecutors filed affidavits that failed to address the essential elements of the charges, and that failed to provide any evidence even approaching the establishment of probable cause. And in both cases, the prosecutors appeared to care nothing for the actual language of the statutes under which they brought charges; they seem to believe that whatever they think the statutes ought to say is what matters rather than what the legislature wrote. In the George Zimmerman prosecution, they were proved wrong. If justice holds in Florida, they’ll be proved wrong in the Shellie Zimmerman prosecution as well.
MOTIVE: Consider that the special prosecutors did not have to file this charge. The local prosecutor–Norm Wolfinger–could have done it, and this would have made far more sense. The executive order from Governor Scott establishing their authority to prosecute George Zimmerman noted that they have authority to deal with all matters relating to the Trayvon Martin case, and on February 19, 2013, Kelly Sims, Shellie’s attorney, argued that the special prosecutors lacked jurisdiction to prosecute Shellie. Judge Marlene Alva disagreed and ruled that they did, refusing to dismiss the perjury charge.
Why then did the special prosecutors, who had more than enough on their plate with the prosecution of George, decide to pursue Shellie? Since they don’t live or work in Sanford, their participation, rather than that of the local prosecutor, will be unnecessarily costly for Florida taxpayers, and has the direct effect of keeping the racially divisive prosecution and subsequent acquittal of George before the public.
Their primary motive is certainly the likelihood that the local prosecutor would not have filed any charge against Shellie, for the same reason he declined to file any charge against George: no evidence of a crime. This is particularly true for perjury, which is a difficult charge to prove, and accordingly is an offense rarely charged. In addition, they likely wanted a prosecution of Shellie not only as a means of harassing George, but to hold over his head, perhaps in the hope of obtaining a plea bargain or even a guilty plea. I’m not aware of any overt attempt by the prosecution to obtain either, but they need not say a word. The mere arrest of Shellie speaks volumes.
Unfortunately, this particular group of ethically bereft prosecutors will be very likely to try to convict Shellie at all costs to in some small way try to justify their failed persecution of George. Angela Corey’s reputation for vindictiveness is the stuff of Florida legend.
When I wrote Update 10 on June 08, 2012, I knew nothing of the prosecutors in this case. Since, I have come to believe they would stop at nothing to secure a win, even violating the law they are sworn to serve. As I noted in Update 36.2 Bernie de la Rionda was, in the aftermath of losing the case against George, careful to announce his win/loss record for the benefit of the public. One might think he would have had more substantial issues about which to worry. They have never failed to live down to my expectations of them. Any doubts I had in early 2012 about the bad motives and unethical intentions of the prosecutors have long since been dispelled.
A REVIEW: From the first bond hearing until Shellie’s arrest, Judge Lester, the prosecutors and the defense were entirely aware of the Internet account established to raise money for George’s defense (Note: I use the familiar “George” and “Shellie” not because I know either of them–I don’t–but merely to avoid having to constantly write their first and last names in differentiating between them). The transcripts of the initial bond hearing and all subsequent hearings reveal that Judge Lester was not sure how to deal with that Internet account, indeed, even whether he had any authority to deal with it at all, a matter he said–on the record– he would have to research. I’m not aware that he ever announced on the record that he conducted such research or that he came to any conclusion about his authority–or lack thereof–to deal with the account.
One fact is indisputable: everyone involved knew about the Internet account and it was treated in court as separate from the Zimmerman’s normal finances/assets, such as their checking and savings accounts.
Also consider that after George’s arrest, the balance of the Internet account constantly changed. Money was coming in at a fast clip, and the balance was changing from minute to minute. A balance reading of the account taken at 2 PM would almost certainly be wrong–by hundreds, even thousands of dollars–a half hour later. The account was treated as separate from the Zimmerman’s normal assets as a matter of practicality–it was physically separate from their normal accounts (not at their credit union)–and as a matter of law. No one, including the judge, knew quite what to make of it. Yet, no one forgot about it and no one tried for a moment to hide its existence or its balance. The prosecution and the judge could determine its balance and the disposition of the funds whenever they wanted. They had only to ask.
THE AFFIDAVIT: On June 27, 2012, I posted Update 12, which provided readers with the Florida perjury statute and a copy of the affidavit. In analyzing the affidavit, I wrote:
…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.
The possibility of Corey’s incompetence and/or malfeasance is no longer inconceivable. I also noted that in Bernie de la Rionda’s questioning of Shellie (on April 20, 2012), his questions (they are provided verbatim in Update 12) were general rather than specific, and that after Shellie told him that she had no idea of the balance of the Internet account, and also told him that her brother-in-law probably did know that information and could be brought to the phone (the testimony was conducted via phone), de la Rionda dropped the matter and did not ask to speak with the brother-in-law. Judge Lester also did not ask any questions or ask to speak with the brother-in-law.
Any lack of knowledge of the balance of that account was directly the fault of de la Rionda and Judge Lester who had more than adequate opportunity to learn that information and chose not to take advantage of it.
Update 12 also notes that the affidavit, supposedly written by special prosecutor investigator T.C. O’Steen, omits–NBC-like–substantial portions of the actual trial transcript, purposely misrepresenting the content and intent of Shellie’s testimony, in effect, lying to the court.
I am tempted to think the judges involved were knowingly ignoring the plainly defective affidavit, but the more likely explanation is that most judges are not used to dealing with deceptive, malicious prosecutors. As a result, they tend to rubber stamp such routine documents, believing that no prosecutor would dare lie to them.
In Update 12, I also quoted Professor William Jacobson of Legal Insurrection, who provided a citation of the Florida case controlling the nature of perjurious testimony, Cohen v. State, from 2008:
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.
PROSECUTION INTENTIONS: What the prosecution appears to be alleging in this case is that when Shellie testified that the Zimmermans did not have substantial assets with which to post bond, she was lying, because she knew that they had some amount of money in the Internet account.
Amazingly, the questions that appear to be the basis for the charge, were actually first asked of Shellie by defense attorney Mark O’Mara. At that point, O’Mara had only been representing George for about a week and was working hard to get up to speed on all the issues in the case. From the transcript (and the excerpt contained in the affidavit):
O’Mara: Other major assets that you have which you can liquidate reasonably to assist in coming up with money for a bond?
Shellie: None that I know of.
O’Mara: I have discussed with you the pending motion to have your husband George declared indigent for cost, have I not?
Shellie: Yes, you have.
O’Mara: And is—are you of any financial means where you can assist in those costs?
Shellie: Uhm, not–not that I’m aware of.
On cross-examination, de la Rionda established that Shellie believed they had no money, and also that she was aware of the Internet account, but didn’t know any details about it, including the current balance. There was no attempt to conceal knowledge of that account, nor was there any false statement about its balance or nature. In fact, Shellie made no statement at all about the balance other than that she didn’t know it.
The remainder of the affidavit establishes that there was money from the Internet account in varying amounts, and that Shellie had transferred money from that Internet account into the Zimmerman’s personal accounts at various times. It also quotes transcripts from recorded jail conversations between George and Shellie where they discuss, in guarded terms, financial issues, such as transferring money from one account to another to pay bills.
Again, the primary problem with the affidavit–and surely with the prosecution’s case–is that the prosecution never identifies a single, specific statement Shellie made, nor does it present any evidence to support the contention she believed any statement she made to be false as she made it, nor does it present any evidence to support any of this. I am, therefore reading between the lines of the affidavit, left with guessing at what the prosecution intends to try to prove. If you have not read Update 12, by all means, do so.
ANALYSIS: Remember the immediate aftermath of George’s arrest. The New Black Panthers put a bounty on his head, a move–conspiracy to commit murder–never rescinded and unaddressed by the DOJ to this day. And this was far from the only death threat against George and his extended family. He could no longer work and was in hiding. His college forbade him from returning due to worries about the safety of his fellow students. Shellie too could not longer work or attend school. They were broke and had no source of income other than the Internet account.
The Internet account, which eventually raised slightly more than $200,000, was, from its inception, intended for the use of the Zimmermans, and it specified that George would decide how the money was spent. The money was spent on George and Shellie’s mere survival and on their staggering legal expenses, expenses effectively doubled by the prosecution in charging Shellie. Unethical prosecutors often rely on a simple economic fact: defendants often have few or no financial resources while the State has the financial power of the taxpayers. There has never been any suggestion that the proceeds of this account were ever mishandled or that anyone was in any way defrauded. While $200,000 sounds like a great deal of money, it was to be a drop in the bucket of the eventual legal expenses, expenses that continue to mount to this day.
Another allegation of the prosecution, not in the affidavit, but in the bond hearing, is that George somehow lied because he did not immediately speak up and correct whatever inaccuracies Shellie might have potentially presented in court. This is utterly false and misleading. George was in essence being punished by having his bond revoked, not for actually lying, but for his silence. George had an absolute, constitutional right to remain silent. He had no obligation to try to speak up and correct any possible misstatement of any witness. In fact, George did not testify to any financial issues during the April 20 hearing.
Again, remember that the Internet account was known to everyone, and actually discussed in the April 20 hearing. George updated O’Mara regularly, and O’Mara informed the court. That’s the job of an attorney. This account and its balance was no secret, nor did anyone try to keep it secret. Again, the judge and prosecutor could have known the balance of that account during the hearing or at any other time, but the prosecutor was apparently far more interested in laying a perjury trap than in honestly presenting the issues for the court.
Remember too that Judge Lester’s behavior, statements and rulings became so obviously prejudicial to George, that on July 12, 2012, O’Mara filed a motion to disqualify him from the case. On August 29, 2012, the Fifth District Court of Appeals granted that motion and Judge Lester was disqualified. Such disqualifications are not unheard of, but they are rare and can reasonably give some insight into the grossly biased conditions George, Shellie and their attorneys faced.
The prosecution has tried to make a great deal of the jailhouse calls between George and Shellie, suggesting that the Zimmerman’s were talking in “code” and somehow behaving shadily, even illegally, in discussing the disbursement of money. This too is false and misleading.
There is nothing illegal about discussing how to pay one’s bills and expenses, which is precisely what the Zimmermans were doing. It is also smart not to openly discuss such things during phone calls that one knows are being recorded, and around criminals–that’s who tends to hang out in jails. The Zimmermans could not know who would have access to those recordings or who could overhear their conversations. The “codes” about which the prosecution insinuated were nothing more than a young couple in unimaginably awful circumstances trying to protect themselves and survive day to day.
Florida’s perjury statute is direct and easily understood:
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.
The first paragraph is the applicable paragraph for this case. The state must prove that Shellie was under oath, testifying in an official proceeding–i.e. court or a deposition–and spoke a lie, a lie she believed to be false as she spoke it, and that lie must be material. It must directly relate to a significant issue of the case. And as Cohen v. State indicates, in Florida (and this is true in most states), the lie must be about an objective fact. It can’t be a matter of opinion or a wrong guess. If the prosecutor doesn’t ask specific questions about objective facts, there should be no prosecution for perjury.
(1) Under Oath: Shellie was indeed under oath, and amazingly, this was even established in the affidavit.
(2) Judicial Proceeding: She was testifying in a judicial proceeding, and this too was established in the affidavit.
(3) False Statement: The affidavit does not present any specific statement made by Shellie as a lie. It spends several pages talking about the Zimmerman’s finances and about their recorded conversations from the jail, but it does not, not once, speak to any actual statement made by Shellie and allege it to be false. It is not enough to imply, insinuate, or suggest. If the state can’t produce a specific lie–and this should be easy; there is a transcript–they have no case.
(4) Does Not Believe It To Be True: Because the prosecution has never identified any statement they allege to be false, they likewise do not offer any proof that Shellie knew any statement she made to be false.
(5) Materiality: Because the prosecution has never identified any allegedly false statement or offered any proof of its falsity or of Shellie’s belief that it was false even as she made it, we can have no idea whether this non-existent statement is material or not.
If you’re unsure about this, by all means, review Update 12, particularly the affidavit. The fact that the prosecution cannot write: “Shellie Zimmerman said: (direct quote), which is false because (evidence), and she knew it to be false because (evidence), and that statement was material because (evidence)” indicates that this prosecution, like the prosecution of George Zimmerman, is, as Don West so succinctly put it, “a travesty.”
The trial is currently scheduled to begin August 21. This will be a brief trial. There will only be a handful of witnesses. A trial of this kind could easily be over within three days. As with George’s case, this charge should never have been brought. Any legitimate concern the court or prosecution had about the Zimmerman’s finances could have been satisfied on April 20 by phone, but they chose to remain uninformed. Any lack of specificity from Shellie was the result of inadequate questions, not knowing deception. The most likely probability is that her testimony was entirely truthful. They had no money–apart from the Internet account–and she had no idea exactly how much money was in that account on April 20, 2012.
It would also be worth your time to visit two articles by Professor Jacobson, one from June 13, 2012, and a more recent one from July 15, 2013 on this case. You’ll discover his conclusions mirror mine, but he approaches things from a slightly different perspective.
It will also be no surprise to regular readers that apparently shortly after Shellie’s arrest, one Eric Jordon-Garrett, by his avatar apparently a black gentleman (this case isn’t about race either, I’m sure), started a petition at Change.Org to terminate Shellie’s nursing license.
As I understand the situation, this is something of an exercise in futility as Shellie was in the process of earning a nursing degree–a process interrupted by having to hide to preserve her life–and had not therefore earned a nursing license. There is also the small matter that Shellie has yet to be convicted of anything, but that legal technicality has not stopped those clamoring for the blood of either of the Zimmermans or their families. Readers will be heartened to learn the petition has garnered a total of 36 signatures.
It’s hard to describe precisely how disturbing and unusual this prosecutorial trend is. I pray it’s confined to this group of particularly unethical prosecutors. It’s one thing for a prosecutor to file charges in a case where the evidence is less than perfect. That’s a judgment call. But to file charges when there is no evidence? I hope that the public isn’t becoming so inured to this that it is becoming the new normal. I hope that it’s not just another integral part of Mr. Obama’s fundamental transformation of America.
Expect any motion to dismiss the case to be denied. I’ll continue to report as additional information becomes available.