No Bond Increase Today, No Gag Order in Zimmerman Case
More drama in the George Zimmerman case.
A hearing on Zimmerman's lawyer surprise disclosure on CNN last night that his client's website had raised a little more than $200,000, was addressed at court today. The Judge declined to order a bond increase but wanted more information about when the payments were received. He will make his final decision after receiving the information.
The state asked for a re-examination of the amount of bond and a gag order on O'Mara. The Judge declined the gag order. O'Mara pointed out he hadn't spoken publicly on the facts of the case and "handlers" of the Martin family were still talking to media. I agree with O'Mara, if anyone in this case needs to be restricted in their extra-judicial comments, it's the lawyers for the Martin family. [More...]
As is typical of the Martin lawyers, after the hearing, they addressed the media making more unfounded accusations against the defense:
Ben Crump, the Martin family’s attorney, said Thursday that Zimmerman’s decision to withhold information about his defense fund from his lawyer and the court suggests a character issue that could effect the case. “The lying has begun,” Mr. Crump told CNN.
That is completely unacceptable. Lawyers should not opine on the "character, credibility, reputation or criminal record of any party or witness." (see below) Prediction: Some lawyer somewhere will file a grievance petition against him before this case is over.
What's unusual is that O'Mara took to the airwaves last night and quoted what his client told him. What happened to rules about the duty of confidentiality and attorney-client privilege?
Since this isn't O'Mara's first rodeo, I assume he got a written waiver from Zimmerman as to confidentiality, allowing O'Mara to talk to the media, as well as a waiver of the attorney client privilege, allowing O'Mara to make the disclosures to the Court. All lawyers know you can't reveal what your client told you without a waiver. (This isn't a case of where privilege no longer applies because the client has alleged the lawyer's representation was ineffective.)
Nonetheless, I think it's a bad idea for a lawyer to quote directly what his client said.
And there does seem to be a "cover your as*" aspect involved. O'Mara, to establish that he personally didn't know about the money before the bond hearing and mislead the Court, is informing the public and court not only what his client told him about it, but when. But by clearing himself, he's putting his client in hot water by suggesting his client knew beforehand and his failure to speak up was "inadvertent," which the judge might not buy. That doesn't sit well.
I suspect O'Mara had already told the state's attorney and they notified the Court yesterday, it was decided that the matter would be addressed in court today, and that's why O'Mara went on CNN last night. In other words, while O'Mara made it seem he was telling the country first, he probably had already told the judge.
As to the money, I don't think it's a big deal as to bond. $150,000 bond is high enough and the money would end up going to O'Mara for legal fees anyway, so it wouldn't be available for him to flee. The funds also will save Florida taxpayers a lot of money because now Zimmerman won't be indigent for the purpose of paying expenses, such as forensic testing and expert witnesses. When O'Mara filed his motion for Zimmerman to be treated as indigent for the purpose of expenses, it was based on the information available to him at the time. As soon as he found out Zimmerman's circumstances had changed, he promptly notified the Court. That's all that is required.
Zimmerman wasn't a flight risk before the money and this doesn't change it. There's no requirement a defendant be stripped of his liquid assets to make bond. If funds and assets available to a defendant were the primary criteria, no one with assets would get bail or be able to afford a lawyer. If they are prevented from using their lawfully acquired funds to pay counsel, the state would be paying for counsel for them as well.
The lawyers for the Martin family should be restricted in their public comments. The court in the Kobe Bryant case in Colorado issued such an order and amended it to make it stronger as the trial grew closer.
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.
...this Court is compelled to intervene and prevent the substantial prejudice to the fairness of the trial that will result should the current pattern of advocacy continue.
Among the restrictions:
....None of 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.
No lawyer associated in a firm or government agency with a lawyer subject to the preceding paragraphs shall make a statement prohibited by the preceding paragraphs. 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
The Judge presiding in Timothy McVeigh's case started with an order restricting extra-judicial comments and moved to a full gag order before trial.
The bond issue is not a big deal. What should be a major focus of attention is the continued barrage of prejudicial comments by those representing the Martin family. Restricting (not gagging) all the lawyers representing those with an interest in the case (including the state, O'Mara and the Martin family lawyers) seems like the best course. (It should also serve to reduce the frequency with which any one of them claim to be responding under the "safe harbor" exception, if Florida recognizes that exception.)
|< Living Originalism: A Conference | U.S. Seeks Extradition of Joran van der Sloot >|