Perjury charge against Shellie Zimmerman raises more questions of prosecutorial overreaching (Update: Prosecution misleadingly edited transcript)
Florida prosecutor Angela Corey has come under withering criticism from Alan Dershowitz for overcharging and leaving out important details in the Affidavit of Probable Cause filed in connection with the charge of Second Degree Murder lodged against George Zimmerman.
Now Corey has brought a charge of felony perjury against Zimmerman’s wife, Shellie, based on testimony during George’s bond hearing with regard to their financial resources. (Criminal Information and Affidavit of Probable Cause embedded at bottom of post.)
There certainly is a case which can be made that the Court was not fully informed of the financial situation, and that is part of the reason the Judge revoked bond under the standards applicable to release pending trial.
But that bond standard is very different from a criminal charge of perjury, which requires proof of a specific material false statement which the person believes not to be true at the time of testimony.
Shellie was charged under Florida statutes, section 832.02(1) (emphasis mine):
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 standard Florida jury instruction on perjury provides:
To prove the crime of [Perjury Not in an Official Proceeding] [Perjury in an Official Proceeding], the State must prove the following five elements beyond a reasonable doubt:
1. (Defendant) took an oath or otherwise affirmed that [he] [she] was obligated by conscience or by law to speak the truth in (describe proceedings, official or unofficial, in which the alleged oath was taken).
2. The oath or affirmation was made to (person allegedly administering oath), who was a (official capacity).
3. (Defendant), while under an oath, made the statement (read from charge).
4. The statement was false.
5. (Defendant) did not believe the statement was true when [he] [she] made it.
So it is fair to ask, having charged perjury, what is the specific false statement made by Shellie Zimmerman?
The Criminal Information (embedded at the bottom of this post) does not say. Instead, the accompanying Affidvit recites testimony, phone call transcripts, and evidence of money received and transferred. Again, that all is relevant to whether George deceived the Court at the bond hearing.
But nowhere in the criminal Information or Affidavit of Probable Cause is a specific sentence or set of words identified as false with an explanation of why it was false.
I think there is a reason for this. Many of the answers of Shellie were non-committal. Since the prosecution does not specify which statements were false, here are some possibilities taken from the testimony quoted in the Affidavit of Probable Cause:
Q. Other major assets that you have which you can liquidate reasonably to assist
in coming up with money for a bond?
A. None that I know of.
What are “major assets”? Isn’t that a matter of opinion? Similarly, what does “reasonably” mean? Isn’t that also a matter of judgment, not a fact? The same lack of clarity accrues to “liquidate.” If the alleged funds already were liquid, the funds could not be liquidated again.
Q. I have discussed with you the pending motion to have your husband George
declared indigent for cost, have I not?
A. Yes, you have.
Q. And is – - are you of any financial means where you can assist in those costs?
A. Uhrn, not- – not that I’m aware of.
This question by defense counsel brings into play another conversation — not recited in the Information — as to what was in the pending motion and the discussions outside of court. What was her understanding of who owned the funds, what they could be used for, and whether they were her funds (“are you of any financial means”). If the funds belonged to George or to his defense fund, they were not Shellie’s financial means.
Q: I understand that you do have other family members present with you, and I’ll
ask some more questions of them, but have you had discussions with them of at
least trying to pull together some funds to accomplish a bond?
A: We have discussed that—
A: —-trying to pull together the members of the family to scrape up anything that
we possibly can.
It’s not clear at all what could be false about this, unless Shellie did not actually have discussions with family members. Again, possible deception, but not a false statement.
Here is the entire segment quoted in the Affidavit of Probable Cause from the prosecution’s examination of Shellie (emphasis mine):
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
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
A: I do not.
Notice the specific wording of the questions and answers. I think the best case for perjury was the response to the question whether “you all had no money.” (added) The way the question was structured, however, the question was whether Shellie previously said that there was “no money,” not that at the time of the question there was no money.
But in the very next question the issue of the website fundraising was raised, and she said she doesn’t “currently” know how much is “in that website right now” or how much was raised “as a result.” The word “currently” suggest that at the moment she was testifying she didn’t know, which may have been correct. Similarly the denial that she had “an estimate” would only be false if at the time of testifying Shellie had an estimate. [see Update below]
It may sound like I’m nitpicking the questions and answers, but that’s what’s at issue in a perjury prosecution.
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).
Instead of specifying the words which constituted empirical statements of fact that knowingly were false and why, the prosecution presents testimony and then evidence, and only generally and vaguely states that a false statement was made.
I am not excusing the conduct of the Zimmermans as to the bond hearing. I understand why the Judge feels he was deceived.
I am questioning the bringing of a felony perjury charge without greater specificity of the false statements, particularly while the alleged perjurer’s husband is awaiting trial in a highly publicized case.
Just more questions as to how this prosecution is being handled.
Update: Per a commenter, it appears that the above testimony was selectively edited by the prosecution to leave out the following exchange (deleted testimony 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.
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.
Note that in the Affidavit of Probable Cause the prosecution did not use an ellipsis or any other indication to show that words were omitted.