So George Zimmerman wants a reasonable bond?
This in itself is not surprising, most every client I have ever represented wanted a reasonable bond.
However, few of my clients ever had a quarter million dollar defense fund, and most importantly few of my clients have ever been caught blatantly misleading a judge about the nature of their assets. (Although I am sure many a defendant before George Zimmerman has lied about their actual assets.)
Does George Zimmerman deserve a bond, in my humble opinion, before his misleading of the court, yes and he deserved a bond much lower than what it was set at. The evidence against him is severely underwhelming. And I believe that the $150,000 bond initially imposed was four times what would have been imposed in a less newsworthy case.
However, I also have little sympathy for the way George Zimmerman allowed the court to be misled regarding his true finances. Killing someone, no matter what the circumstances, should never be a reason to come into a financial windfall and then lie about it.
But more importantly, if the financial windfall is for purposes of defending yourself, it should only be used for that reason; not hid so that you can maximize the amount you get to keep when all is said and done.
So with that said, here are a few things to consider about today’s bond hearing:
The Integrity of the Judicial System
As Mark O’Mara points out, Article 1, Section 14 of the Florida Constitution provides that:
Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.
As you can see, in Florida there is a presumption that a person is entitled to bond and only under three limited circumstances can a judge deny a person bond.
So dispensing with irrational argument for the moment, which would be pure hyperbole and speculation, there is no evidence that George Zimmerman poses a threat to the community or that he will not appear at trial.
To the contrary, the evidence seems to suggest that certain segments of the community pose a threat to George and that he has gone out of his way to cooperate with law enforcement. (In a million years, I would never believe a person who thought they were guilty would willingly scream help for police so they could get voice samples).
So that leaves us with assuring the integrity of the judicial system; the most troubling issue Judge Lester must grapple with today.
Interestingly, Wells Fargo v. Reeves (Fla. 1st DCA June 13, 2012) is a mortgage foreclosure appeal that recently discussed a similar scenario where the integrity of the judicial system was at issue. (And although this opinion speaks in terms of dismissal of a foreclosure suit as a sanction, the corollary sanction in George Zimmerman’s case would be a denial of bond.) In this decision, the First DCA said:
Fraud upon the court is an egregious offense against the integrity of the judicial system and is more than a simple assertion of facts in a pleading which might later fail for lack of proof. Rather the requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.
To support dismissal for fraud on the court, the party alleging fraudulent behavior must prove such by clear and convincing evidence. Inartful pleadings, inconsistent testimony, and even lying to the court by a witness are generally insufficient to support a dismissal for fraud upon the court.
However, the power to dismiss a case for fraud upon the court is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved. A court certainly possesses the authority to protect judicial integrity in the litigation process. The authority to dismiss actions for fraud or collusion should be used cautiously and sparingly, and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing.
While ultimately the Court reversed the dismissal of the foreclosure action, it seemed to do more on the possibility of good faith defenses that were ignored by the trial court, rather than explicit findings of fraud.
However in George Zimmerman’s case, the judge explicitly made findings of fraud. And so even if George Zimmerman admits his failure to come clean at the initial bond hearing was “wrong” and he “accepts responsibility” (does he have a choice), I believe Judge Lester would be well within his rights to deny George Zimmerman a bond based upon he and his wife’s collusion.
The Trust Fund Defendant
A lot has been made by Mark O’Mara about the defense trust fund, which George Zimmerman supposedly has no control over.
While I don’t doubt that the intent is for Mark to spend the donated money on George Zimmerman’s defense (and by definition his lawyers’ fees), make no mistake at all – that money is George Zimmerman’s. George Zimmerman has complete control, authority, and final say as to where any of that money is spent. If there is any doubt as to the truth of this conclusion, one need look no further than Florida Bar Rule 5-1.1, Rules Regulating Trust Accounts.
On a side note, I have heard of trust-fund babies, but never trust-fund defendants – just saying.
Might Mark O’Mara Secretly Hope Lester Denies Bond
First, Mark O’Mara is one of the most professional and ethical attorneys I am acquainted with, so I discuss this more for hypothetical sake than anything.
With that said, we also know that Mark O’Mara originally was going to represent George Zimmerman Pro Bono, even though he claimed to normally charge in the $400/hour range. He was also going to ask to have Zimemrman declared indigent for costs, in which case the state would pick up the defense costs (due process costs).
But then he found out about that George Zimmerman had in the neighborhood of $250,000 stashed away in his defense fund. While that is less than what the
accused acquitted baby killer had available, it is still more than 99% of criminal defendants will ever have available to defend themselves.
Needless to say, Mark O’Mara was probably pretty relieved about his decision to take on the case pro bono, but also pretty happy. Because I don’t care how much you claim to charge an hour (you listening Foghorn Leghorn?), the truth is that clients that can actually afford such an hourly amount are few and far between. More often than not, a criminal lawyer agrees to a flat fee that is paid regardless of how many hours are put into a case.
However, if Judge Lester now set an extremely high bond, say two million dollars, it will likely put Mark O’Mara back in the pro bono category and the State back on the hook for George Zimmerman’s defense costs. Why?
In Florida, and most states, when a person is granted bond, they can satisfy the bond in one of two ways:
- Post a Cash Bond for the Full Amount; or
- Post a Surety Bond through a bondsman.
Obviously, if the bond is set at more than what George Zimmerman defense fund has, he would have to post a surety bond. However, the posting of a surety bond comes with a hitch: the defendant must pay the bondsman 10% of the bond value. This is known as a Bail-Bond Premium.
Therefore, if Judge Lester sets bond at the two million dollar mark, 10% of the bond premium will be $200K. While not a bad day’s work for a bondsman, it’s a real bad day for the person paying the premium unless the money was never yours in the first place (or at least earned).
So you can bet your bottom dollar that George Zimmerman is not going to hesitate using his donated money to get his butt out of jail as quickly as he can; and there is nothing Mark O’Mara can do or say to stop him from using the defense fund money to pay the Bail-Bond premium.
On the other hand, if the judge denies bail, finding that the integrity of the judicial system cannot be assured, then Mark O’Mara can continue to bill his $400/hour (I wonder if George Zimmerman ever negotiated a contract before he told Mark about the defense fund) and the state of Florida will avoid spending a ton of money on George Zimmerman’s defense while Mark O’Mara spends countless days deposing witnesses that Ben Crump has already gotten a hold of.