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.)

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    Jeralyn is a terrfic community resource (5.00 / 4) (#1)
    by michele on Fri Apr 27, 2012 at 02:03:29 PM EST
    thanks for providing the public with this terrific website. Your skills in explaining the legal system are valued and appreciated as is your insistence on fairness and accuracy.

    thank you! (none / 0) (#2)
    by Jeralyn on Fri Apr 27, 2012 at 02:25:36 PM EST
    Much appreciated.

    We disagree on Florida Law and the 1st Amend. (5.00 / 1) (#38)
    by Michael Masinter on Fri Apr 27, 2012 at 05:23:04 PM EST
    If a Florida court makes appropriate findings, it can, as in the McVeigh case and a few Florida cases, gag the lawyers for a party in a pending civil or criminal case.  But the McVeigh order did not gag witnesses or their lawyers; it gagged the defense team, and no Florida case I can locate has ever approved gagging a lawyer other than the prosecution or plaintiff's counsel and defense counsel in a then pending case.

    Mr. Crump is not counsel to a party in the criminal trial.  He has not, so far as I know, filed any civil case.  Whether Mr. Crump's public statements have violated the Rules of Professional Conduct is a matter for the Florida Bar, not the judge in the criminal case, and to date I have seen no suggestion that he has violated those rules.

    The Martin family is free to speak even though they are crime victims; victims' rights statutes give rather than strip crime victims of rights.

    Perhaps under Gentile a showing sufficient to gag defense counsel, the prosecution, and the police can be made, but nothing in Gentile or Florida caselaw authorizes a broad gag order on anyone else.

    Disagree (none / 0) (#70)
    by Jeralyn on Fri Apr 27, 2012 at 07:07:57 PM EST
    The lawyers, in representing the Martins, who are potential witnesses in the criminal case and who are considered victims in the case under Florida law, are subject to restrictions on their comments. Both by the rules of professional conduct and under a court order.

    In Florida in 2010, a judge issued a temporary gag order against lawyers including the civil lawyer who represented the victim's family:

    Broward Circuit Judge Elijah Williams issued a temporary order stopping prosecutors, the Sheriff's Office, defense lawyers and a civil attorney from releasing details about the allegations against Treacy, 15, who is in a juvenile detention center facing an attempted murder charge.

    ....Ratley's family released pictures taken of the bruised and comatose girl in her hospital bed at Broward General Medical Center in Fort Lauderdale. Family lawyer Rick Freedman said Ratley's mother wants people to use what happened as a "teachable moment" and to see the results of teen violence.

    As to witnesses: Judge Reggie Walton in the first Roger Clemens trial:

    The federal judge overseeing the Roger Clemens perjury case issued a gag order Monday instructing Clemens, lawyers and witnesses in the matter to rein in their passionate rhetoric - or else.

    "The undersigned member of the Court will not tolerate such behavior from anyone over which the undersigned can exercise authority," wrote U.S. District Court Judge Reggie Walton, who will oversee the trial in which Clemens faces six felony accounts listed in an indictment returned on Thursday.

    In Cleveland,  a judge who initially gagged anyone who might be a potential witness, modified it to limit the application, and still defined witness as:

    "witnesses" as anyone who gives a statement now or in the future to law enforcement or the district attorney about the case; as well as anyone who testifies in pretrial proceeding about it.

    No one is suggesting the Martins not be allowed to comment. But prejudicial comments by their lawyers are subject to restriction.


    Can you talk about today's hearing (5.00 / 1) (#63)
    by Jeralyn on Fri Apr 27, 2012 at 06:23:27 PM EST
    here please and not the evidence as you see it? Thanks. There are open threads and other Zimmerman threads for that.

    This is about today's hearing.

    Martin Family "handlers"? (1.00 / 1) (#5)
    by rickroberts on Fri Apr 27, 2012 at 03:08:59 PM EST
    More like hangers-on. That pack of vultures around the Martins wants money.

    Absolutely agree (none / 0) (#3)
    by 12345 on Fri Apr 27, 2012 at 02:29:15 PM EST
    Crump should be told by the court to watch his language.

    As for O'Mara and attorney-client confidentiality, it has appeared for some time now that George Zimmerman feels a big need to respond publicly, to not be restrained in communicating.  This was apparently some issue with his former lawyers.  It has sounded like he keeps asking them if he can speak publicly, and even went so far as to set up that website.  O'Mara, since taking the case, has been more open to these requests from Zimmerman.  I don't see today's disclosures so much as "CYA" as more of the same effort to have a public portrait of Zimmerman emerge as a more human figure, and to present the defense of Zimmerman as not a high-powered bag of legal tricks but that of an honest if unsophisticated defendant trying to do his best to be open with everybody, not hiding behind his lawyer.

    O'Mara has already felt the need to express second-thoughts about letting Zimmerman be talkative in public. But maybe Zimmerman wanted him because he was impressed by the way he comes across on TV and felt he wanted to win in the court of public opinion too, even at the risk of creating opportunities for the prosecution to exploit his words.  

    Or maybe O'Mara likes being on camera too much.

    Zimmerman's Public Personna (none / 0) (#13)
    by MSimon on Fri Apr 27, 2012 at 04:27:33 PM EST
    The fact that Zimmerman cares so much about his public reputation may be a minus for his legal defense. It is a big plus if he goes after those defaming him.

    "Going after"? Who? (none / 0) (#24)
    by 12345 on Fri Apr 27, 2012 at 05:04:20 PM EST
    I haven't seen Zimmerman "going after" anybody who defamed him. It may be a minus for him to have put up a website, to have tried to publicly respond to questions the Martin family said they wanted to hear him respond to, and to have called Sean Hannity, etc.  But I haven't seem him trying to "go after" others.  I imagine some people will interpret his behavior as "protesting too much" but others will probably see a man who disagrees with the picture of him painted in the media.

    It is a curiosity that his lawyer is gabbing so much and allowed him to speak at all at his bail hearing.  Standard advice is generally to be absolutely silent.  He has already said some things that could be used against him (the contradiction between the 911 statements to police about Martin: "He looks to be in his late teens") and the statement to the family "I thought he was a few years younger than me.")

    As was pointed out in the blog post, his lawyer quoting what Zimmerman told him in private conversations also exposes Zimmerman to some risks.  But I get the impression, once O'Mara came on the scene, that these are calculated risks.

    But perhaps O'Mara doesn't really know what he's doing. Maybe he's the one who cares too much about his public image, at the expense of his client.


    Case Not Over (none / 0) (#26)
    by MSimon on Fri Apr 27, 2012 at 05:09:21 PM EST
    "I haven't seen Zimmerman "going after" anybody who defamed him."

    The time is not right.

    As Jeralyn says: Prediction: Some lawyer somewhere will file a grievance petition against him before this case is over.

    The case is not over.


    If and when that happens (none / 0) (#30)
    by 12345 on Fri Apr 27, 2012 at 05:11:43 PM EST
    ... we will see if it is a plus or minus for Zimmerman.

    "Restrained"? (none / 0) (#23)
    by ks on Fri Apr 27, 2012 at 05:00:27 PM EST
    While Zimmerman not saying much personally, wisely so, he certainly has had plenty of people (e.g. associates, friends, family) that have been speaking "for him" in several media appearances.

    Zimmerman's "spokespeople" (none / 0) (#27)
    by 12345 on Fri Apr 27, 2012 at 05:09:57 PM EST
    have never really carried much weight, I think.  Not only have they been perceived negatively, or skeptically, or over-protective of a family member or friend, there has also been tremendous curiosity about what Zimmerman's own version of events is.  That is, of course, because he is alive to tell his side while Trayvon's Martin's side of the story can only be imperfectly pieced together from relatives.

    it is often said (5.00 / 1) (#100)
    by Jeralyn on Fri Apr 27, 2012 at 11:30:22 PM EST
    that forensics speak for the dead victim and tell his story.

    How can Martin's family (none / 0) (#97)
    by Darby on Fri Apr 27, 2012 at 09:52:53 PM EST
    piece together what happened at all? None of them were present. Martin's side can be just as easily by any other observer, and probably with less bias from an outsider.

    Hmmmm..Crump is not involved (none / 0) (#32)
    by ruffian on Fri Apr 27, 2012 at 05:15:25 PM EST
    in this case in any official capacity, is he? The court case is between the state of FL and G. Zimmerman.

    What control does the judge in the case have over Crump or the Martin family? If there ever is a civil case with a judge, it will be another matter.


    See Jeralyn's comment #19 (none / 0) (#35)
    by jbindc on Fri Apr 27, 2012 at 05:20:19 PM EST
    I learned a lot in this thread (none / 0) (#91)
    by ruffian on Fri Apr 27, 2012 at 09:08:26 PM EST
    Thanks all.

    If I were Zimmerman's attorney (none / 0) (#4)
    by MyLeftMind on Fri Apr 27, 2012 at 03:05:22 PM EST
    two things I'd want to see right away are videos from the store Martin went to and copies of his cell phone records. I'd be looking for inappropriate or erratic behavior at the store, and timing of his calls to his girlfriend.

    If Martin was on the phone with his girlfriend before Zimmerman called the police non-emergency number, he might have been acting strangely because he was engaged in a phone conversation. Many people seem to forget they're in public when they're talking on their phone. Sometimes they even have fights and wave their arms around or pace back and forth. If Martin was walking back and forth or even standing still while talking on the phone, Zimmerman might have misinterpreted his behavior. If he wasn't talking to the girlfriend until after Zimmerman contacted the police, it's more likely that he was making a call to a trusted person because he was concerned about his own safety while someone was watching and/or following him.

    Can the court prevent the store from making their security video public?

    can you raise this in an open thread (none / 0) (#65)
    by Jeralyn on Fri Apr 27, 2012 at 06:24:50 PM EST
    or thread about the evidence? this is about today's hearing and legal issues of bond and media comments.

    The phone records were released by Crump. (none / 0) (#104)
    by Gandydancer on Sat Apr 28, 2012 at 10:08:12 PM EST
    Please correct me if I'm wrong (none / 0) (#6)
    by CoralGables on Fri Apr 27, 2012 at 03:09:26 PM EST
    but as opposed to the Bryant case, the victim here is dead and thus has no representation. The case is between the State and Zimmerman. Crump is free to say anything he wants, just as you are or any number of TV lawyers that will pop up on this case.

    When and if there is a civil case here, and if Crump is representing the family in litigating the civil case, then he would be subject to the Court on these matters.

    Again, if I'm way off please let me know.

    Lawyers representing those (5.00 / 3) (#19)
    by Jeralyn on Fri Apr 27, 2012 at 04:52:10 PM EST
    with an interest in the case are not the same as lawyers providing analysis who don't have such an interest.

    The family of the deceased in a case charging murder is considered a crime victim. Just as the surviving family members of those killed in Oklahoma were victims. Crump and associates, in representing the family of Trayvon Martin,  are representing victims.  In addition, his clients may be witnesses at the trial.

    As survivors of Trayvon, the parents are accorded rights to be heard and kept informed under  crime victims statutes. While not parties, they are considered victims. Also, their lawyers  may be contemplating a civil suit on behalf of their clients, a decision which may turn on how the criminal case is decided. They also can be considered to have an interest in the litigation.

    As the Kobe order and McVeigh orders and numerous others around the country make clear, lawyers for witnesses, victims, participants and those with an interest in the criminal case can be covered by an order restricting extra-judicial comments.

    Lawyers for the Martins, who are both victims and potential witnesses, (the affidavit for arrest says Trayvon's mother  can identify his voice) are subject to restrictions on their comments by the professional rules of conduct and any order the court decides to enter.

    Orders restricting comments of lawyers for witnesses were also entered in the Laci Peterson, Michael Jackson, and Duke Lacrosse cases.

    Our Supreme Court:

    "Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures."

    "[M]embership in the bar is a privilege burdened with conditions"...lawyers in pending cases were
    subject to ethical restrictions on speech to which an ordinary citizen would not be

    ...As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice." Because
    lawyers have special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers' statements are likely to be received as
    especially authoritative.

    Fair trial directives of some courts go even further and prohibit  lawyers for clients with an interest in potential or imminent criminal ligitation to refrain from giving any opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence in the case.

    The rules of professional conduct apply to the Martin family lawyers. I think the question is s whether their comments should be restricted or prohibited entirely.


    I hope the judge does something (none / 0) (#22)
    by Darby on Fri Apr 27, 2012 at 04:55:56 PM EST
    to stop the flow out of Crump and Jackson's mouths

    Jackson (none / 0) (#25)
    by ks on Fri Apr 27, 2012 at 05:07:50 PM EST
    As in Jesse Jackson?  If so, how do you imagine that's going to happen?  He's not one of the Martin family lawyers.  If you mean somebody else, then that may be another matter

    No, I mean Natalie Jackson (none / 0) (#29)
    by Darby on Fri Apr 27, 2012 at 05:11:38 PM EST
    I believe that is another of the 'lawyers' representing the Martins

    Not necessarily true (none / 0) (#11)
    by bmaz on Fri Apr 27, 2012 at 03:56:17 PM EST
    The family are the "victims" within the formal ambit of Florida law and, I believe, their constitution itself. They can certainly be placed under the auspices of a court order.

    I just deleted that comment (none / 0) (#81)
    by Jeralyn on Fri Apr 27, 2012 at 08:03:07 PM EST
    it was so demonstrably false I didn't want it being associated with this site.

    Not true (none / 0) (#12)
    by oldmancoyote22 on Fri Apr 27, 2012 at 04:07:44 PM EST
    From this link, which is published by the Reporters Committee for the Freedom of the Press:  http://www.rcfp.org/first-amendment-handbook/introduction-what-do-if-court-issues-gag-order

    Just one example -

    "The U.S. Court of Appeals in New Orleans (5th Cir.) affirmed a gag order prohibiting all trial participants from giving any public comments to the media other than matters of public record in a case involving the elected Louisiana Insurance Commissioner, James Harvey Brown, and the former Governor of Louisiana, Edwin W. Edwards.5 The court concluded "that the gag order is constitutionally permissible because it is based on a reasonably found substantial likelihood that comments from the lawyers and parties might well taint the jury pool . . . is the least restrictive corrective measure available to ensure a fair trial, and is sufficiently narrowly drawn.""

    Brown Was the Defendant! (none / 0) (#21)
    by Michael Masinter on Fri Apr 27, 2012 at 04:53:56 PM EST
    U.S. v. Brown, 218 F.3d 415 (5th Cir. 2000) upheld a gag order imposed on Brown, the defendant in the criminal case, and limited its holding to trial what it variously called trial participants and parties.  Though the gag order extended to witnesses who were not parties to the case, no witness challenged the gag order, and the court was careful to note that Brown could not challenge the order as overbroad since he declined the chance to submit a narrower order and was seeking only to assert his right as the defendant to speak.  From the court:

    Moreover, Brown's complaints that the order is overbroad or too vague are weakened by the fact that he did not take the district court up on its invitation to submit suggested modifications of the order. Instead, Brown insisted that he be completely exempt from any restrictions on extrajudicial comments. He never sought clarification. If he had been so concerned about the scope of the order, he should have communicated those concerns to the district court as he was given ample opportunity, and indeed invited, to do.

    In short, while the language of the order is arguably somewhat broad, under the circumstances we do not find it to be so vague or overinclusive as to unjustifiably trammel on Brown's free speech rights.

    the order in Brown included (none / 0) (#79)
    by Jeralyn on Fri Apr 27, 2012 at 07:43:26 PM EST
    trial participants and their lawyers. A witness is a trial participant. The state's attorney in its affidavit for arrest listed as probable cause that  Mrs. Martin identified her son's voice on the tape. She's a likely witness and her lawyer would be covered.

    Comments can be restricted by the court as to any participant in the case, and  the Martins, who are invested with statutory rights as crime victims by being the next of kin to a homicide victim, are participants since they have the right to be heard on certain matters.

    You keep saying "gag order" and what I'm advocating is an order retstricting, not preventing, extrajudicial comments by lawyers representing witnesses and parties, both named and those having a legal interest in the case, which is well within the court's authority to grant. It would apply to all lawyers involved, not just one set of lawyers.

    The Court clearly has the authority to grant it if it deems it necessary to "protect a person's right to a fair trial, the fair administration of justice or the sanctity of jury deliberations."

    Given the prejudicial comments by the Martins' lawyers to date, which have continued unabated since Zimmerman was arrested and charged, I think it's necessary.

    It doesn't matter who appeals the order. You seem to think if someone other than Brown had appealed it, the result would have been different. The guidepost, no matter who appeals it, is first and foremost, the defendant's right to a fair trial.


    I would add... (none / 0) (#82)
    by bmaz on Fri Apr 27, 2012 at 08:04:55 PM EST
    ...that it is pretty hard, if not impossible, to see how the Martin family and counsel are anything but fully invested in the process as "victims" under both Article I Section 16 and corresponding statutes/rules.  There are no actions by them whatsoever that could be consistent with a full, or oven partial, waiver of that status, and all actions consistent with invocation of it including the relationship and consultation with Corey, input to the special prosecutor, notice and appearance at proceedings etc.  

    It matters who appeals (none / 0) (#86)
    by Michael Masinter on Fri Apr 27, 2012 at 08:19:47 PM EST
    It doesn't matter who appeals the order.

    Yes, it does.  Article Three restricts federal the power of federal courts to adjudicating cases or controversies.  There was no case or controversy between the absent witnesses and Brown because none of the witnesses appealed; the only dispute concerned the application of the order to Brown, the defendant in the criminal case.

    You seem to think if someone other than Brown had appealed it, the result would have been different. The guidepost, no matter who appeals it, is first and foremost, the defendant's right to a fair trial.

    With respect, you are wrong.  I cannot raise on appeal in federal court the rights of a third party when my only objection is to the order as  applied to me.  To be sure the overbreadth doctrine is an exception to that rule, but for reasons I explained it cannot apply in Brown.  All Brown could argue was that the order was unconstitutional as to him, the defendant in the case, and we agree that, with appropriate findings, a court can gag a defendant.

    Gentile does not make the right to a fair trial a universal solvent for free speech under the first amendment.

    Full disclosure, albeit belatedly:  I serve on the board of the Florida ACLU and chair its legal panel, and we have successfully fought gag orders in other cases.  We have not been asked by anyone to become involved in this case.


    and I'm suggesting (none / 0) (#87)
    by Jeralyn on Fri Apr 27, 2012 at 08:29:21 PM EST
    the validity pf the order in Brown would be no different if you had intervened and appealed on behalf of the lawyers representing the family of the homicide victim.

    Victims' lawyers file motions to intervene in criminal cases. Check how many were filed by the media and victims in the OKC bombing case.

    Lawyer's speech can be regulated. And I'm done arguing because you don't seem to be addressing the issues involved in this or any other criminal case as to what lawyers are allowed and not allowed to say to the media when representing a client. It's not a first amendment case about the rights of their client. It's about limits a court can place to ensure a fair trial for a defendant.


    That leaves the Martin family free to speak (5.00 / 1) (#89)
    by Michael Masinter on Fri Apr 27, 2012 at 08:56:29 PM EST
    So we agree -- no court can forbid the Martin family from speaking.  We disagree over the propriety of forbidding their lawyer, Crump from speaking.  At least until a request to impose a gag order is made, that question is moot.  

    I respect Zimmerman's rights.  If he does not get a fair trial, whether by reason of pretrial publicity or any other reason, his conviction cannot stand.  It is not hard to balance the two rights; the Martin family can speak, and Zimmerman can have a fair trial.  Neither has to give way to the other.


    My entire post and (none / 0) (#101)
    by Jeralyn on Fri Apr 27, 2012 at 11:54:00 PM EST
    all the comments I wrote are about what lawyers can say. My post said:

    The lawyers for the Martin family should be restricted in their public comments.

    I have not addressed whether the courts can restrict the Martins' speech and I see no reason to address it. It's not an issue now. The Martins  have acted very decently in my view. I was very impressed with an interview I saw by their other son, Trayvon's brother.

    If that were to change and they went on TV every night saying GZ was a liar and guilty of murder, I might change my mind. So we may not agree in principle.

    But I don't expect that to happen. I feel sorry for the Martins, , everyone does, and they have every  right to speak about their grief and their son. That's far different that what their lawyers are doing which is repeatedly saying GZ's defense is made up, attacking his character and calling his version "lies."


    What about a reckless disregard for the truth? (none / 0) (#85)
    by SuzieTampa on Fri Apr 27, 2012 at 08:19:35 PM EST
    TM's parents; Ben Crump; and the Revs. Sharpton and Jackson, whom Crump called, gave out incorrect information, especially in the beginning.

    In Crump's other big case, he represented the family of Martin Lee Anderson, a 14-year-old who died at a boot camp for juvenile offenders. The Miami Herald also discusses the parallels.  

    Joy-Ann Reid of The Grio suggests that the TM case has gotten more attention because of the "baby-faced ... telegenic" photo of TM, as opposed to the photo of Anderson, in which he was wearing corn rows, which she thinks was more threatening to the public. It would seem that Crump learned his lesson; TM's parents didn't release any recent photos of him, at least for the first few weeks. The reaction might have been different if the first photo showed him older and taller. Imagine if the first photo was the one on TM's FB page.  

    Anderson had to run around a track. When he said he was tired, the guards hit him, and he died. The medical examiner said Anderson died from sickle-cell trait and exertion, not from being struck. He said Anderson would have died, even if guards had helped him. The state called in another medical examiner, who ruled Anderson died from suffocation, due to being forced to inhale ammonia. He later testified that sickle-cell trait had played a role, and at the trial, 2 more medical experts backed the ruling of the first medical examiner.

    The seven guards and a nurse who were involved were not arrested for a while, and Crump blamed racism. He called Sharpton and Jackson, and there were demonstrations with people holding up Anderson's picture.

    The 7 ended up being charged with manslaughter. "The prosecution never claimed the guards violated boot camp policy or used excessive force in handling Anderson."

    Before the trial concluded, the county and state awarded about $7.4 million to the parents. Check out this St. Pete Times story, in which the reporter says Anderson died due to violence.

    At trial, they were found not guilty. Later, the DOJ found no civil-rights violation.

    Nevertheless, people frequently refer to the "beating death" of Anderson. The Orlando Sentinel also mentioned this case, omitting the part about sickle-cell trait.


    Counter for Jeralyn (none / 0) (#40)
    by AngryBlackGuy on Fri Apr 27, 2012 at 05:29:00 PM EST
    the family is not the alleged victim and although we are trying to impute their lawyers with the same ethical standard as a direct participant in the case, they are not.

    In addition, the rule in Colorado is interesting but irrelevant for purposes of lawyers qualified in Florida. Does the Florida standard require the family to remain silent? If not, there is no issue with their lawyers advocating a position publicly and making a statement on behalf of the family.

    the family can talk and their lawyers can talk, and if that is somehow unethical, the family can assert that the lawyers are serving as spokespeople for the family.

    I disagree with the concept that parties not involved in the case must remain silent.   The families are not involved in the case.

    They are accorded rights (5.00 / 2) (#59)
    by Jeralyn on Fri Apr 27, 2012 at 06:18:24 PM EST
    under the Florida Crime Victims Act and the court in Seminole County has established rules in its Criminal Operations Manual as to when and how victims are heard. It's on the court's website. Victims include the next of kin of homicide victims.

    Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant at all crucial stages of criminal proceedings to the extent that these rights do not interfere with the constitutional rights of the accused. Art. I, Sec. 16(b), Fla. Const.

    They are also potential witnesses.

    Either way, their lawyers are covered by the professional rules of conduct on extra-judicial comments. Florida's Rule 4.3-6

    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.

    Another example: the court restricted lawyers for victims in the Jerry Sandusky case as to what they can say.

    This is not Colorado law, it's constitutional law and the rules of professional conduct for all lawyers, which differ only slightly from state tot state, including Florida. The First Amendment does not shield them. As the Supreme Court has said:

    Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures."

    It's not a question of staying silent. It's a question of not making prejudicial and derogatory comments about the character of the defendant, the state of the evidence, the credibility of the defendant.

    The lawyers' comments claiming Zimmerman's injuries were not serious were bad enough, in my view, but saying today "the lying has begun" is inexcusable.


    Yes, the family is indeed the "victim" (none / 0) (#46)
    by bmaz on Fri Apr 27, 2012 at 05:50:08 PM EST
    As I said above, the role of the family as the "victims" is specifically provided for in both Florida law AND their constitution.

    Florida Crime Victims' Bill of Rights
    Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.
    Florida Constitutional Amendment, Article I
    Sec. 16. Rights of accused and of victims
    (a) In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation against him, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties he will be tried. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law.
    (b) Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.

    See also FLRS 960.001.  I do not think there is much question but that with the proper findings that the court has the inherent supervisory authority and power to enter whatever gag order is necessary to insure a fair trial process.  And, yes, that includes the Martins and their noisy counsel.


    as for kobe (none / 0) (#45)
    by Jeralyn on Fri Apr 27, 2012 at 05:49:20 PM EST
    the judge modified the order to exclude exclude comments by those not affiliated with the case, who simply shared offices with someone who was affiliated. More here.

    The accuser's lawyer did challenge the order , more here, and lost.  As I wrote then:

    By statute, the accuser has the right to be treated with fairness. But Kobe's constitutional right to a fair trial is paramount. Her lawyers' motion is replete with references to Kobe as the "rapist" and the accuser as the "victim." She's an alleged victim. He's a defendant, not a rapist, and he's presumed innocent. Her lawyers are grandstanding to prejudice the jury pool. Their request should be denied.

    The order did survive, and it would survive today. It was modeled on the McVeigh order and that's still good law too. Witnesses are routinely covered by these orders. And all witnesses are either associated with the state or defense, that's who calls them at trial. You can't volunteer to be a witness, so your comment that a witness not associated with or employed by the state would have won if they appealed it makes no sense.

    There were several orders in the Kobe case, starting at the preliminary hearing. As comments grew worse, restrictions tightened. They all covered the accuser's lawyers.

    I covered all the developments in Kobe, here on TalkLeft and as a TV analyst -- I was even credentialed by the court as media in the case.

    Judge Lester Denied A Gag Order (5.00 / 0) (#51)
    by Michael Masinter on Fri Apr 27, 2012 at 06:02:14 PM EST
    Per the NY Times:

    "I am concerned that there has been too much talking to the media," Mr. de la Rionda said.

    But Mr. O'Mara, who has given numerous interviews, said that because the case had become a "significant media event," he was unable to "stand absolutely mute."

    Judge Lester sided with the defense, saying he believed that "everybody has conducted themselves appropriately" and had refrained from inflaming tensions.


    the prosecutor asked for it (none / 0) (#60)
    by Jeralyn on Fri Apr 27, 2012 at 06:20:30 PM EST
    on O'Mara. It has nothing to do with the Martins' lawyer. No one has requested a gag order on them.

    But why gag only a nonparty (none / 0) (#64)
    by Michael Masinter on Fri Apr 27, 2012 at 06:24:39 PM EST
    I know of no case here or anywhere else gagging a nonparty lawyer but leaving the prosecution and defense counsel free to speak to the media.  And as I said earlier, Florida courts have not to my knowledge ever gagged a lawyer for a victim.  

    because they are the ones (none / 0) (#71)
    by Jeralyn on Fri Apr 27, 2012 at 07:10:34 PM EST
    making prejudicial comments. Neither the state prosecutor or O'Mara are improperly commenting on the character or credibility of the accused or the state of the evidence. It's not gagging them so much as restricting what they can say. If they refuse to change voluntarily, a motion should be filed.

    and the order would apply to (none / 0) (#72)
    by Jeralyn on Fri Apr 27, 2012 at 07:11:36 PM EST
    all lawyers as I said in my post. It wouldn't single out the Martins' lawyers.

    But neither the state nor the defense agrees (none / 0) (#90)
    by Michael Masinter on Fri Apr 27, 2012 at 08:58:42 PM EST
    Neither the state nor the defense wants a gag order limited to Crump.  The state only cares about gagging the defense; the defense only cares about being able to speak.  So who's going to request the gag order?  Not the state and not the defense.

    Note that the earlier order sealing the records has been lifted.


    No one wants (none / 0) (#92)
    by Jeralyn on Fri Apr 27, 2012 at 09:17:39 PM EST
    or is suggesting an order limited to Crump. I'm suggesting an order that applies equally to all of them. I think the judge could do it on his own motion, but apparently he's not so inclined. Maybe that will change.

    The only thing unsealed before today was the court's file with filed documents and pleadings, not police investigative reports or witness interviews. The court has the pleadings available on its website.

    Did something else get unsealed today? That would be big news. Even though there was a hearing on that, I haven't seen that anything else was ordered release.


    If it gets any more bellicose (none / 0) (#93)
    by bmaz on Fri Apr 27, 2012 at 09:18:54 PM EST
    If it gets any more bellicose, I would hope the court would do it sua sponte in the interest of justice. Jeralyn is right the bunk, especially by the Martins and counsel, but it is pretty easy to see the Zimmerman side elevating as well, needs to be dialed back in order to maximize chances for a fair trial.  You would sure hope the court would attempt to do informally first.  Maybe things will naturally calm down with time; though does not show any such indications yet and we have not even had evidence substantially hit the public ether yet either.

    At the bail hearing..... (none / 0) (#61)
    by CuriousInAz on Fri Apr 27, 2012 at 06:21:08 PM EST
    The prosecution asked all three testifying family members if they knew about the website and any funds it had raised.

    All said they knew of it but had no knowledge of the facts surrounding money raised.

    The prosecutor asked the first family witness if she knew who would know about the details of the funds raised.

    She said GZ's brother Robert would be the one to know.   Prosecutor asked if he was available to testify,   she said they,  the family,  could get him on the phone of need be.

    The prosecutor never took her up on the offer.

    Zimmerman has a duty to disclose ... (none / 0) (#69)
    by Yman on Fri Apr 27, 2012 at 07:05:19 PM EST
    ... assets, regardless of whether the prosecutor's elected to call her brother-in-law in the middle of a bail hearing.

    It's also interesting to note that the website (currently down) originally indicated that Zimmerman would "personally maintain accountability of all funds received" and that "This website's sole purpose is to ensure my supporters they are receiving my full attention without any intermediaries."

    Moreover, the new website set up by Zimmerman's attorney indicates that George Zimmerman himself administered the website in question.

    I want to take a moment to clear up some of the confusion regarding the monies raised on Mr. Zimmerman's website. My understanding is that there were three websites which had PayPal accounts attached to them. One or two of them were run by friends of Mr. Zimmerman, and then there was the web site therealgeorgezimmerman.com , which George administered.

    he couldn't personally (5.00 / 1) (#73)
    by Jeralyn on Fri Apr 27, 2012 at 07:23:28 PM EST
    monitor it despite his intentions for long. it went live around April 9,  he was arrested on April 11. The only way he could check how much had been raised would be to log into paypal or his email. I doubt he had that ability in jail.

    He may have given his brother or other family members access, but unless something's changed in the past few hours, it's unclear when the money was donated and when it became a substantial amount. And when he was told about it. Or whether he re-assumed control over it once out of jail.

    He may not have known details until he was released from jail. If he talked to his family from jail or they visited, maybe they discussed it, maybe not. We don't know.


    Right. (none / 0) (#75)
    by bmaz on Fri Apr 27, 2012 at 07:33:19 PM EST
    Well, (none / 0) (#74)
    by bmaz on Fri Apr 27, 2012 at 07:32:17 PM EST
    He has now affirmatively disclosed now.  So what?  The court will remove him from indigent or partially indigent status and everybody can move along appropriately.  This is a red herring. Zimmerman himself said nothing as to financial status at the bail hearing. Nothing.  The parents and wife did not appear to know and O'Mara says he did not know.  When he realized, he disclosed openly and fully.  This is just silly prattling on about it at this point, which appears to be exactly what Lester thinks absent some unknown blockbuster revelation.

    More of what the judge thinks? (5.00 / 1) (#95)
    by Yman on Fri Apr 27, 2012 at 09:34:36 PM EST
    Tooooooo funny.

    You have absolutely no idea what the judge thinks about this.  He wants more information before he rules .... that's all you know.

    BTW - The duty to disclose wasn't now - it was at, or prior to, the bail hearing - as part of his application for bail.  It's not remotely a "red herring".  If the judge determines that Zimmerman or his family weren't forthcoming about their assets (which he hasn't determined yet), we'll see how much of a "red herring" it is.

    Zimmerman himself said nothing as to financial status at the bail hearing. Nothing.  The parents and wife did not appear to know and O'Mara says he did not know.

    You can choose to believe that, but I don't know.  Somebody was telling me how I could read the the judge's body language and get a "gut feeling", and watching the hearing I got the distinct impression that Judge Lester was very skeptical that the only Zimmerman aware of these monies was the unavailable brother.

    I think we're calling that "informed speculation" ...


    Jail supplied laptop and wifi? (none / 0) (#78)
    by Raoul on Fri Apr 27, 2012 at 07:35:53 PM EST
    How is GZ supposed to check his PayPal account when he's in jail?

    Not quite (none / 0) (#80)
    by Jeralyn on Fri Apr 27, 2012 at 08:01:12 PM EST
    Inmates do not get laptops and internet access in jail. Even if allowed computer access for legal research or to review discovery, internet access is shut off. If they are allowed email, it's limited to receiving and sending messages through the jail, there is not logging on to third party websites.

    And the regulations for the jail Zimmerman was in (assuming they haven't changed) say:

    "Internet generated mail", including photocopies, is prohibited

    Also... (none / 0) (#84)
    by CuriousInAz on Fri Apr 27, 2012 at 08:11:21 PM EST
    When did the funds start pouring in?

    Prior to his arrest? or perhaps after the narrative crushing bond hearing?


    Lets be realistic (none / 0) (#94)
    by RKF on Fri Apr 27, 2012 at 09:29:24 PM EST
    We don't "know" but in all probability testimony was planned and coordinated, including direct knowledge, to mislead the court on the issue.  That is by far the most likely scenario.  

    It may not be a big deal in the overall scheme, but let's not pretend we don't know what likely occurred.


    What a complete load of bull (none / 0) (#96)
    by bmaz on Fri Apr 27, 2012 at 09:36:50 PM EST
    There is not one single shred of evidence to support that outlandish statement. None. The witnesses were all under oath and penalty of perjury and O'Mara is not going to jeopardize his bar card for that pissant hearing where his client was going to get bail no matter what because the state's case is ridiculously thin.  Unbelievable.

    rjf (none / 0) (#102)
    by Jeralyn on Sat Apr 28, 2012 at 12:10:00 AM EST
    That is an absurd leap and future such comments will be deleted. If you want to say that's what you think, you can (a few times anyway) but to say in all probability  that's what happened when you present no facts to support it, and then claim others besides you know this is what probably happened, is unacceptable. I'm leaving your comment up as an example of comments that will be deleted.

    If you can't take the time to add "I think", "I believe" etc  before speculating as to someone's nefarious intent, with no facts whatsoever, your comments don't belong here.


    I think that is going to be problematic (none / 0) (#98)
    by Darby on Fri Apr 27, 2012 at 10:02:02 PM EST
    for Zimmerman if there were significant funds and he had access at the time of the bond hearing.

    I was surprised to see that posted by O'Mara.


    please discuss today's hearing (none / 0) (#66)
    by Jeralyn on Fri Apr 27, 2012 at 06:29:04 PM EST
    Save your comments you already posted because I'm going to clean the thread.

    The HuffPost continues (none / 0) (#88)
    by SuzieTampa on Fri Apr 27, 2012 at 08:50:44 PM EST
    its bad coverage with this lead:
    A Florida judge refused to increase the bail for George Zimmerman, the town watch volunteer charged with murdering unarmed teenager Trayvon Martin, after prosecutors revealed he had raised about $200,000 from supporters."

    "I'm not going to make a snap decision," Florida Circuit Judge Kenneth Lester Jr. ...

    This slant is similar to the original reports that Sanford police had decided not to arrest Z. It's a matter of "right now" v. "sometime in the future." Another way they slant the coverage is by giving Ben Crump the last word on most? every? development.