George Zimmerman: State Moves for Another Gag Order
The state moved for a gag order against the defense yesterday. Here is the motion, which will be heard next week. I think the motion, which is directed at Zimmerman's lawyers, picked the wrong target. The target should be the lawyers for the family of Trayvon Martin. They are the ones who comment on the evidence, opine on guilt, and inflame passions likely to prejudice the potential jury pool.
The defense has posted pleadings it has filed in court. That's allowed, and the motion doesn't seek to prevent it. The defense is also allowed to inform the public about the course of proceedings. [More...]
While Florida rejected the "safe harbor" provision of the ABA Model Rules, its rule preventing comments that a lawyer knows will have a substantial likelihood of materially prejudicing the proceedings is intended to comply with the Supreme Court decision in Gentile v. Nevada. In Gentile, the Supreme Court wrote:
An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation and
reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.
Benjamin Crump last week gave an interview to the Orlando Sentinel claiming "Race is the elephant in the room." O'Mara acted within the rules by responding with a statement saying the case is not about race, but self-defense. And there was nothing inappropriate about O'Mara's distancing the legal team and Zimmerman from the comments made by Zimmerman's brother, pointing out that Zimmerman's brother does not speak for them.
What's not allowed, is for the Martin family lawyers, who are "associated" with the prosecution by virtue of their representation of the victim's family, to call George Zimmerman a murderer or his legal team liars. Nor should they state their opinion of the evidence and belittle his self-defense claim, proclaim which evidence is relevant and irrelevant, or provide their view of the credibility of witnesses. If a gag order is entered, at least it will cover them as well.
As I was writing this a few hours ago, the Martins are giving a press conference on why their son's school records are irrelevant. That's not their call to make. Last night Crump gave an interview saying the same thing while demanding access to Zimmerman's medical records. Of course, Crump is not the state or a party to the case. He doesn't get to direct the course of the criminal proceedings or demand evidence not publicly available.) Zimmerman's medical records are protected by law, even if turned over to the State. If portions are determined by the court to be admissible at trial, he can see them then, along with everyone else.
His complaints about the school records are also unfounded. Both the state and defense have stated in pleadings that even if obtained, the school records would not be public. They are exempt from Florida's public records law. The Court confirmed this today. Second, the issue now is not about what will be admissible at trial. This is the discovery phase. It is about what may lead to relevant admissible evidence. The items sought to be discovered do not have to be relevant or admissible, they just have to have the potential to lead to relevant evidence.
On April 30, when Judge Lester denied the state's first motion for gag order, he said the parties, the state and defense, had conducted themselves entirely professionally. He issued a veiled threat to the lawyers for third parties associated with the case. Meaning Team Crump. He reminded them that they are also subject to the rules of professional responsibility.
(b) Statements of Third Parties. A lawyer shall not counsel or assist another person to make such a statement. Counsel shall exercise reasonable care to prevent investigators, employees, or other persons assisting in or associated with a case from making extrajudicial statements that are prohibited under this rule.
Immediately after that hearing, Crump went right to the cameras and said of the defense, "The lying has begun."
The state's motion includes a request to gag lawyers associated with either the state or defense. That includes the Martin family lawyers. They gathered evidence for the state -- they turned over their version of Witness No. 8's statements about her telephone calls with Trayvon Martin the night he was shot. The state relied on her statements in as probable cause in its affidavit to arrest and charge Zimmerman. Their interview of her, inaudible as it is, was released in discovery along with the state's interview with her. The state was unaware of her existence until Crump's March 20 press conference at which he announced her existence and played his recording of her interview, which he even referred to as an affidavit. They vouched for her credibility to the media. Their clients are listed as trial witnesses.
Angela Corey, in her press conference announcing charges, thanked the Martins' lawyers for their "daily assistance" communicating updates from their office to the Martins.
I want to especially thank Mr. Crump and Mr. Parks, who have stayed in touch daily with us on behalf of our victim's family. Remember, it is Trayvon's family that are our constitutional victims and who have the right to know the critical stages of these proceedings.
Yes, the victim's family has the right to know the critical stages of the proceedings and has the other rights granted under Florida's Victims Rights Act. But it is the Defendant who has the 6th Amendment constitutional right to a fair trial.
Team Crump is clearly associated with the prosecution and covered by Florida's ethical rule, 4-3.6, cited by the state in its motion.
The state is also bound by the ABA Standards on Prosecution Function which Florida has adopted.
Florida has adopted the American Bar Association Standards of Criminal Justice Relating to Prosecution Function. This is the product of prolonged and careful deliberation by lawyers experienced in criminal prosecution and defense and should be consulted for further guidance.
Under those standards, the state has an affirmative obligation to try and control the extrajudicial statements of lawyers and agents associated with their case.
Standard 3-1.4 Public Statements
(a) A prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under this Standard.
If the court issues a gag order, which I doubt it will do, it must encompass the lawyers for the Martin family. And it should not prevent Mark O'Mara from continuing to post publicly available pleadings on his website and discuss the nature of court proceedings with the media. As the commentary to Rule 4-3.6 states:
[The public] has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.
It is the Martin family lawyers whose comments need restriction, including their twitter accounts. If a gag order is entered, I hope it is as comprehensive as the order entered by the Judge in Eagle County, Colorado in the Kobe Bryant case:
....the lawyers, law enforcement agency or officers who are participating or who have participated in the investigation or litigation of this matter, the alleged victim , Defendant and witnesses shall not make an extrajudicial statement which a reasonable person would expect to be disseminated by any means of public communication, which relate to the following:
- (1) the character, credibility, reputation or criminal record of any party or witness;
- (2) the expected testimony of a party or witness;
- (3) the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;
- (4) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
- (5) any opinion as to the guilt or innocence of Defendant, or the ultimate issue of fact to be determined by a jury;
- (6) the merits of the case and the merits of the evidence in the case;
- (7) information that has been ruled to be or is likely to be inadmissible as evidence in a trial; and
- (8) opinion as to the fairness of the proceedings or the existence or nonexistence of prejudice as to a party or witness.
The order also stated:
The prohibitions contained herein shall apply to partners, associates, employees, representatives, and agents of the lawyer and law enforcement agency and officer, the alleged victim, Defendant and witnesses.
(Lawyers who merely shared office space with lawyers subject to the order who were commenting on the case as legal analysts were excluded from the order.)
As the Judge in the Kobe Bryant case stated:
It is a fundamental constitutional principle that the Defendant is entitled to a fair trial by impartial jurors. Extrajudicial statements, which are substantially likely to directly or indirectly interfere with that right, may constitutionally be prohibited.
If the Martin family lawyers and their public relations team would stop attacking George Zimmerman in the media, there would be no need for O'Mara to respond to their attacks. The prejudicial pre-trial publicity would significantly diminish, which in turn will increase the likelihood of being able to seat a fair and impartial jury.
I addressed the issue of comments by potential trial witnesses, like the Martins, Osterman and members of the Zimmerman family, here. Unlike Team Crump, which directly advises the Martins, O'Mara has no control over the Zimmerman family or Osterman. It's unfortunate, because they are hurting Zimmerman. They should respect Zimmerman's choice of a lawyer and let him determine the media strategy, rather than taking matters into their own hands.
Bottom line: There's no need for a gag order on the defense. If one is issued, it needs to include all lawyers associated with the case, especially the ones making the most prejudicial comments and using the media as a vehicle to argue their interpretation of the evidence.
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