The Zimmerman saga is far from over. Despite being acquitted of second degree murder charges, George Zimmerman faces federal prosecution, as the most racialist and politicized DOJ in history weighs the political implications. And his wife, Shellie, faces a trial for perjury scheduled to begin on August 21.
Perjury is very difficult to prove, rarely filed, and much misunderstood. Florida statute 837.02(1) states:
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 …
In addition, Cohen v. State (2008) held:
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.
Simply put, in order to win the case against Shellie Zimmerman, the state must be able to prove every element of the offense: that she (1) while under oath (2) in a judicial proceeding (3) made a false statement (4) that she knew to be false about (5) a material matter. In addition, that statement must be about a matter of objective fact, not an opinion or an incorrect guess. If a prosecutor doesn’t ask sufficiently direct and specific questions so as to elicit objectively factual responses, he’s out of luck.
Out of luck, that is, unless that prosecutor is engaged in a political action that ignores the law and legal ethics.
In many ways, the largest impediment to a successful perjury prosecution is the necessity of proving what a defendant believed. In this case, all the prosecution appears able to prove is that Zimmerman was under oath in a judicial proceeding.
The story begins on April 20, 2012, at a bond hearing for George Zimmerman, whose bond had been revoked by Judge Kenneth Lester. Judge Lester’s bias against George Zimmerman became so blatant that the Fifth District Court of Appeals removed him from the case on August 29, 2012, a rarity. Prior to that hearing, George was incarcerated and his phone calls and other contacts with Shellie were recorded. During the April 20 hearing, Shellie — who was in hiding due to credible death threats — testified by phone.
At issue is the existence of a PayPal account that had been established as a defense fund for George Zimmerman. The account balance was to eventually increase to a little more than $200,000, an amount that was to become a drop in the bucket of legal fees and expenses that still appear to have no end. At the hearing, all parties — judge, defense and prosecution — were aware of that account and were treating it as separate from the Zimmerman’s normal finances (checking account and savings account).
Mark O’Mara had been George’s attorney for only about a week and was struggling to get up to speed with every element of the case. At previous hearings, Judge Lester stated on the record that he had no idea if he had any authority to deal with that PayPal account and would have to research the matter. It appears that he never did that. In any case, everyone involved knew about and discussed the account; there was never any attempt to hide it, and George did not testify about anything at the hearing other than to briefly take the stand to apologize to the family of Trayvon Martin for his death.
By that point, the Zimmermans were destitute. Driven from their home by death threats and a relentless media falsely depicting George as a racist murderer, living in hiding, driven from their jobs and their schools, they had no income and no way to earn it. This, too, was well-known to everyone involved.
The affidavit for the perjury charge, written and submitted by special prosecutor investigator T.C. O’Steen, is — like the affidavit submitted for the murder charge — devoid of probable cause.
In fact, it does not establish a single specific statement made by Shellie Zimmerman and explain why that specific statement was false, why it was material, how it was a matter of objective fact, or why Shellie believed it to be false as she uttered it.
Of all of the elements of the offense that must be established and proved, the state established only that Shellie was under oath and testified in a judicial proceeding.
Not only does the affidavit fail to fulfill the elements of the offense, by omission it actually lies to and misleads the court. In this case, there is no doubt that Judge Lester was biased against George, but it is most likely that the affidavit was approved because judges are generally not used to dealing with prosecutors willing to lie to them. Receiving an affidavit for a felony charge, they tend to rubber stamp it, not considering that a prosecutor, an officer of the court, would mislead them. In this case, that’s exactly what happened.
This is the relevant excerpt from the affidavit of the cross examination of Shellie by Bernie de la Rionda:
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.
Compare it with the transcript of the same testimony. The sections of the transcript that were omitted in the affidavit are in italics:
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?
A. Yes.
Shellie testified that they had no money in their normal accounts and that she had no idea how much money was in the Internet account, but that her brother-in-law probably knew that information and that she could get him on the phone.
Notice that the pertinent information about the brother-in-law was completely removed from the affidavit.
In fact, as soon as de la Rionda learned about him, he immediately dropped that line of questioning and never again asked about the account and never asked Shellie to arrange for him to testify by phone. Judge Lester also showed no interest in getting that information, despite the fact that it had a direct bearing on why the hearing was being held.
The remainder of the affidavit contains brief excerpts of the recorded jail conversations between George and Shellie that indicate they spoke about transferring money on several occasions between accounts to pay bills and other living expenses. It also establishes that they had varying amounts of money in various accounts at various times. The prosecution has made much of the fact that they appear to speak in a kind of crude code, avoiding mentioning specific amounts of money. George also cautions Shellie about carrying any amount of money.
Hmm … why would anyone speaking about money on a recorded line in a jail be cautious?
There is nothing illegal or in any way wrong 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 with criminals nearby. 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 the Zimmermans, in terrible circumstances, trying to protect themselves and survive day-to-day.
If de la Rionda was actually interested in the truth, why didn’t he simply arrange for the telephone testimony of the brother-in-law, as Shellie offered?
It appears he was trying to construct a perjury trap.
He — or Judge Lester — could have had that information at any time; all they had to do was ask the right person, a person known to them, a person that could have come to the phone to testify.
It appears that the prosecution means to claim that when Shellie testified she did not know the amount in the Internet account, or that they were essentially destitute, she was lying. There is no question that there was money available from that account, yet it is clear that everyone involved was treating that money as separate from the Zimmermans’ normal assets, and Shellie never denied that there was money in the Internet account — only that she didn’t know its balance. In addition, the prosecution did not identify — has never identified — any specific statement made by Shellie they believe to be false, nor have they explained why she believed it to be false as she said it.
This is not difficult; they have a transcript. De la Rionda’s questions lacked the necessary specificity to establish matters of objective fact.
Perhaps this charge was brought as a trump card, as something to hold over George’s head to induce him to plead guilty or to accept a plea bargain. Perhaps it was nothing more than cruel harassment, or even intended to utterly impoverish the Zimmermans — the state has bottomless coffers — and break their will. Now that the special prosecutor has lost the case against George, perhaps they hunger to convict Shellie at any cost, to somehow harm the Zimmermans. Angela Corey’s reputation for vindictiveness is, after all, the stuff of Florida legend.
Ultimately the special prosecutor enters another felony trial as they did George Zimmerman’s trial: unable to fulfill the elements of the crime. We have another backward case where the defense will argue the law and the facts, and where the prosecution will argue that Shellie Zimmerman should be convicted because they say so.
Unlike George’s trial, there is no race card to be played. One can only hope that justice will prevail in this case as well.
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