Wednesday, June 6, 2012

Batter Up?

On May 19th I wrote the following:


Alan Dershowitz and Florida Rule 4-8-3: What Florida lawyer will step up to the plate?

This is about the Zimmerman case and Harvard’s Professor Alan Dershowitz.  (Full disclosure: Years ago when I represented Walter Polovchak, “The Littlest Defector,” Professor Dershowitz was one of the few lawyers, let alone academics, in America who defended the boy’s right to asylum and to remain in the United States.  I still owe him. You can Google it.)
In the past few days, Professor Dershowitz has been interviewed at length about the outrageous immoral, unprofessional, unethical, unconstitutional and even illegal conduct of the Zimmerman prosecutor.  He has been 100% correct!

I will not recount her misdeeds, nor Dershowitz’s indictment of her.  Suffice to say that the prosecutor's treatment of evidence, disclosure of relevant information to the defendant and court, her handiwork in preparation of the affidavit upon which the charges were based, and charging Murder 2 when not only was there no evidence but the available facts showed a prima facie case of self-defense, all raise substantial questions about her violation of American Bar Association and Florida rules for the professional conduct of lawyers.

The Florida Statutes Annotated Bar Rule 4-8.3(a) provides that: “Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.”  The emphasis on “shall” is mine, to make the point that if the conditions of Rule 4-8.3(a) have been violated a Florida-licensed lawyer has no choice but to report the offender.

The statute’s Editors’ Notes inform us of this: “Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. * * *  This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.”

The convincing case against the Zimmerman prosecutor that has been made by Professor Dershowitz and others has imposed a professional obligation on Florida lawyers.  It will be interesting to see if any of them recognize that and act accordingly.
Today, Professor Dershowitz wrote the following:

Alan M. Dershowitz’s Perspective: State Attorney Angela Corey, the prosecutor in the George Zimmerman case, recently called the Dean of Harvard Law School to complain about my criticism of some of her actions.

She was transferred to the Office of Communications and proceeded to engage in a 40-minute rant, during which she threatened to sue Harvard Law School, to try to get me disciplined by the Bar Association and to file charges against me for libel and slander.
State Attorney Angela Corey
(AP Photo)
She said that because I work for Harvard and am identified as a professor she had the right to sue Harvard.

When the communications official explained to her that I have a right to express my opinion as “a matter of academic freedom,” and that Harvard has no control over what I say, she did not seem to understand.

She persisted in her nonstop whining, claiming that she is prohibited from responding to my attacks by the rules of professional responsibility — without mentioning that she has repeatedly held her own press conferences and made public statements throughout her career.

Her beef was that I criticized her for filing a misleading affidavit that willfully omitted all information about the injuries Zimmerman had sustained during the “struggle” it described. She denied that she had any obligation to include in the affidavit truthful material that was favorable to the defense.

She insisted that she is entitled to submit what, in effect, were half truths in an affidavit of probable cause, so long as she subsequently provides the defense with exculpatory evidence.

She should go back to law school, where she will learn that it is never appropriate to submit an affidavit that contains a half truth, because a half truth is regarded by the law as a lie, and anyone who submits an affidavit swears to tell the truth, the whole truth and nothing but the truth.

Before she submitted the probable cause affidavit, Corey was fully aware that Zimmerman had sustained serious injuries to the front and back of his head. The affidavit said that her investigators “reviewed” reports, statements and “photographs” that purportedly “detail[ed] the following.”

It then went on to describe “the struggle,” but it deliberately omitted all references to Zimmerman’s injuries which were clearly visible in the photographs she and her investigators reviewed.

That is Hamlet without the Prince!

The judge deciding whether there is probable cause to charge the defendant with second degree murder should not have been kept in the dark about physical evidence that is so critical to determining whether a homicide occurred, and if so, a homicide of what degree. By omitting this crucial evidence, Corey deliberately misled the court.

Corey seems to believe that our criminal justice system is like a poker game in which the prosecution is entitled to show its cards only after the judge has decided to charge the defendant with second degree murder.

That’s not the way the system is supposed to work and that’s not the way prosecutors are supposed to act. That a prosecutor would hide behind the claim that she did not have an obligation to tell the whole truth until after the judge ruled on probable cause displays a kind of gamesmanship in which prosecutors should not engage.

The prisons, both in Florida and throughout the United States, are filled with felons who submitted sworn statements that contained misleading half truths. Corey herself has probably prosecuted such cases.

Ironically, Corey has now succeeded in putting Zimmerman back in prison for a comparably misleading omission in his testimony. His failure to disclose money received from a PayPal account requesting donations for his legal defense made his testimony misleadingly incomplete.

In her motion to revoke his bail, Corey argued that Zimmerman “intentionally deceived the court” by making “false representations.” The same can be said about prosecutor Corey. She too misled and deceived the court by submitting an affidavit that relied on a review of photographs and other reports that showed injuries to Zimmerman, without disclosing the existence of these highly relevant injuries.

Even if Angela Corey’s actions were debatable, which I believe they were not, I certainly have the right, as a professor who has taught and practiced criminal law nearly 50 years, to express a contrary view. The idea that a prosecutor would threaten to sue someone who disagrees with her for libel and slander, to sue the university for which he works, and to try to get him disbarred, is the epitome of unprofessionalism.

Fortunately, truth is a defense to such charges.

I will continue to criticize prosecutors when their actions warrant criticism, to praise them when their actions deserve praise, and to comment on ongoing cases in the court of public opinion.

If Angela Corey doesn’t like the way freedom of expression operates in the United States, there are plenty of countries where truthful criticism of prosecutors and other government officials result in disbarment, defamation suits and even criminal charges.

We do not want to become such a country.

So now the prosecutor tries to silence one of her most eloquent and harshest critics.

Some of us are still waiting for at least one Florida lawyer to step up to the plate.

Surely, there is at least one who's not intimidated by this runaway state attorney.

Or, maybe there isn't!