Zimmerman Gag Order: The Defense Is Not the Problem
The State's Attorney's Office has filed this Memorandum in support of its second motion for a gag order on attorneys in the George Zimmerman case. The pleading is not on the court's website yet, but Jeff Wiener of the Orlando Sentinel has posted it. He describes it here. The hearing on the motion is today at 1:30 p.m. Fox 35 Orlando will be live-streaming it.
It's not the defense that needs gagging. While I don't think Judge Nelson will issue a gag order, as opposed to just reminding all the lawyers they are subject to disciplinary rules for improper prejudicial extra-judicial comments, it's important to note that that the State asks in its Memorandum, as it did in its Second Motion for Gag Order (and its first motion in April) that the court restrict not just prosecutors, O'Mara and defense lawyers, but all lawyers "involved" with the prosecution or defense. [More...]
The State would renew its Motion for Gag Order and pursuant to Rule 3.220 (1)(1), Florida Rules of Criminal Procedure, and Rule 4-3.6 of the Rules Regulating the Florida Bar, ask this Honorable Court to enter an order prohibiting any attorney involved with the prosecution or defense of this cause, any personnel employed or affiliated with said attorneys, and law enforcement personnel from making or releasing any extrajudicial statements to the media about the following: facts of this case, any evidence or the lack thereof in this case, the strength or weakness of the case, the credibility or the lack of credibility of any potential witnesses, opinions about guilt or innocence, and any appropriate or anticipated penalty.(my emphasis)
As I wrote here, the Martin family lawyers are clearly involved with the prosecution. They gathered evidence for the investigation of Zimmerman -- such as Witness 8's statements about her telephone calls with Trayvon Martin the night he was shot. The state relied on Witness 8's statements for probable cause in its affidavit to charge Zimmerman with second degree murder. Crump's interview of Witness 8 was released in discovery along with the state's later interview of her. The state was unaware of Witness 8 until Crump announced her existence at a press conference on March 20 and played a recording of his interview with her, which he described to some reporters as an affidavit. The state has listed Witness 8 as a trial witness. Their clients, Trayvon Martin's parents, 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. She said:
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.
Judge Lester warned all lawyers associated with the case in his April 30 order denying the request for the gag order. He wrote that the lawyers for the parties (the state and Mr. Zimmerman) have acted with the utmost professionalism and no gag order on them is warranted. He then reminded lawyers "connected to" the case and "their agents" that they are also subject to Florida ethical rules for lawyers on extrajudicial comments and are subject to discipline if they violate the rules. He wrote:
All attorneys are ethically obligated to follow the Rules Regulating the Florida Bar and may be subject to discipline for violating those rules. With regard to those attorneys connected to this case (or their agents) who choose to speak to the media must keep specifically in mind Rule 4-3.6, which states:
a) Prejudicial Extrajudicial Statements Prohibited.
A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.
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.
Let's compare the state's list of public comments by O'Mara to just a smattering of those by Benjamin Crump and his associate, Natalie Jackson. (All transcripts via Lexis.com):
Benjamin Crump, March 20, 2012 Press Conference
“George Zimmerman, this neighborhood association loose cannon”
....“So this claim that Trayvon Martin was the aggressor is preposterous. And it cannot be allowed to stand because we have all the evidence now. We have three independent witnesses who say in their backyard -- and they came forward, they don't know the Martin family at all, they don't have a dog in this fight. They are just good people telling what they observed. What they heard. And what they heard was it was the kid Trayvon Martin, screaming out for help on that 911 call.”
.... “This young lady connects the dots. She connects the dots. She completely blows Zimmerman's absurd defense claim out of the water. “
....“ She says he is his regular self, all this stuff about him being high and stuff is preposterous. It's what Zimmerman wants you to believe so he can justify killing this kid in cold blood.”
....“Now, you go back and listen to George Zimmerman's 911 call, I request, I implore and I beg you on behalf of Sabrina Martin and Tracy Martin, I implore you to listen to him, listen how he's talking, how his words slur and you scratch your head and ask yourself, why didn't the Sanford Police Department do a drug and alcohol analysis on him?”
....“We have three independent witnesses who say in their backyard -- and they came forward, they don't know the Martin family at all, they don't have a dog in this fight. They are just good people telling what they observed. What they heard.”
“And what they heard was it was the kid Trayvon Martin, screaming out for help on that 911 call.”
Natalie Jackson on Nancy Grace New Developments in Trayvon Martin Case, CNN March 27, 2012: (Opining on George Zimmerman's supposedly different versions of the shooting and whose voice is on a 911 call):
JACKSON: The first story was Trayvon dragged him out of the car and attacked him. The second story was he was looking at -- he was looking for street signs to tell the police where he was, and Trayvon attacked him. Now we hear that Trayvon had somehow attacked him from behind and knocked him down.
Trayvon was found dead -- his body was found face down in the ground with his arms under him. That is not someone who was on top of a person beating them. It`s more consistent with the witnesses statements that Mr. Zimmerman was on top. There are witnesses that state that.
When they say there`s a 13-year-old boy who says that Zimmerman was there, we have evidence that the police told witnesses that it was Zimmerman, not who they thought, Trayvon on the ground. The police have totally -- they`ve totally been very inappropriate and conducted this so- called investigation...
Natalie Jackson on The Last Word for MSNBC April 9, 2012: (Opining on Gunshot and Voices on 911 Tape)
Lawyers Natalie Jackson and Benjamin Crump insisted then that they could hear two shots on one 911 call, a warning shot and a kill shot, and that that proved Zimmerman was a murderer.
"You hear a shot, a clear shot then you hear a 17-year-old boy begging for his life, then you hear a second shot," Jackson said.
GUN IN TEEN'S SLAYING FIRED ONCE, NOT TWICE Sun-Sentinel,March 20, 2012 (Natalie Jackson Claiming Police Coverup;and Opining on Evidence; and advancing theory as to why Zimmerman shot Martin):
“This is amazing,” family attorney Natalie Jackson said. “The police have been covering up from the start. The most alarming thing was hearing a 17-year-old pleading for his life and someone still pulling the trigger.”
She said calls from other witnesses who heard or saw the incident from their window appeared to back up their claim that it was Zimmerman who had the upperhand throughout the altercation. “Racism doesn’t make you go get a gun and shoot someone,” Jackson said. “Racism makes you profile them. What made him shoot was that he was one of them; he felt he was a cop.”
The state is completely ignoring its obligation under Florida's Special Rules for Prosecutors and ABA standards (adopted by Florida)(" 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."):
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.
The state should be complying with its obligation to exercise reasonable care in preventing those associated with the prosecution from making prejudicial comments prosecutors are not allowed to make by moving for an order restricting the comments of the Martin family lawyers. While the state's motion, if granted today, could well include the Martin family lawyers, the state has not once referred to their inflammatory, prejudicial and in many instances, highly disputed and dubious comments, and Judge Nelson said she hasn't watched or read the news coverage of the case. So on her own, she would have no idea.
There is no need for a gag order on the defense. If one is issued, it should include all lawyers associated with the case. And the state should be taken to task for not alerting the court to the need for the Martin family lawyers' comments to be restricted.
Nor should the order, if granted, prevent Mark O'Mara from continuing to post publicly available pleadings on his website and inform the public as to the course of court proceedings. As the media points out and the commentary to Florida's 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.
Don't be fooled by those claiming the Judge has no authority to restrict the comments of lawyers not representing parties to the case. It's done frequently. Examples: Roger Clemens and Kobe Bryant. Some judges even gag witnesses but not the lawyers. From the Kobe Bryant order:
A lawyer or law enforcement agency or officer who is participating or has participated in the investigation or litigation of this matter, the alleged victim, Defendant and witnesses shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer, law enforcement agency or officer, alleged victim or Defendant knows or reasonably should know that it will have a substantial likelihood of (1) materially prejudicing an adjudicative proceeding in this matter; or (2) interfering with the fair trial of the pending charges; or (3) otherwise prejudicing the due administration of justice.
Earlier posts on gag order issue:
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