More Court Documents Released in George Zimmerman Case

Here is the state's motion for a gag order in the George Zimmerman case. The Court's minutes from April 29 state the motion was not "entertained." [More...]

As was debated endlessly in the comments to this post, I think any order limiting extra-judicial comments by lawyers has to include all lawyers involved in the case, including those working for the Martin family.

If the judge didn't consider the motion (as per his minutes) rather than rejecting it, it may come up again.

There's one additional factor not mentioned in comments to the earlier post that I think should make them subject to any future order limiting comments: The Martins' lawyers have been actively involved in the investigation of the case. They were the ones who obtained an affidavit from Trayvon Martin's phone friend and provided it to the state's attorney and Justice Department. (Added: The "affidavit" may be her sworn oral statement, not a written document. CNN anchors and analysts say they used the word "affidavit.") The state's attorney included the phone friend's statements in determining there was probable cause to charge Zimmerman in its affiavit. By investigating and providing evidence to the state, they have made themselves agents of the prosecution or at the least, lawyers involved in the prosecution.

As to the discovery, the Court's minutes say that requests for access will be made on a "case by case" basis. The minutes state:

The State's Motion for Gag Order Was Filed in Open Court. Attorney O’Mara Waived Defendant's Appearance For the Purposes of this Hearing
Attorney O’Mara Addressed the Court Regarding the State's Motion. The Court Did Not Entertain the State's Motion for Gag Order at this Time.

Attorney O’Mara Made an Ore Tenus Motion to Have Discovery Remain Sealed as it pertains to the Witnesses Names and Addresses. State Attorney Addressed the Court on the Ore Tenus Motion.
Attorney Ponce for the Media Submitted Case Law and Argument on the Defense Ore Tenus Motion.
The Court Orders the Matter Will Be Addressed on a Case-by-case Basis.

The April 23rd unsealing order pertained only to the Court's file, not discovery in the prosecutor's file, which is made available under Florida's public records law. (Discussion here.) It ordered names and addresses be redacted from the Court file.

The Court did not set a deadline for O'Mara to file specific requests as to the documents he wants redacted before they are made public. But since he said he will address such requests on a case by case basis, I don't think the media will get access before O'Mara's requests are filed and considered.

For handy reference:

Court pleadings are available on the court's website here. George Zimmerman's lawyer has established this website to keep the public informed of its positions and respond to inquiries.

Please keep your comments in this thread on topic to the legal issues. A Zimmerman open thread where you can post about factual theories is here.

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    Dee Dee's Affidavit (none / 0) (#1)
    by nomatter0nevermind on Mon Apr 30, 2012 at 04:29:57 PM EST
    Has it been confirmed that Dee Dee's statement to Crump was put in the form of an affidavit?

    I don't think such an affidavit was mentioned at the bail hearing, unless it was during a commercial break. Detective Gilbreath said Detective O'Steen interviewed her.

    It might make a difference if Dee Dee has sworn to a version of her statement, which might have discrepancies from her statement to O'Steen or future courtroom testimony.

    Crump said affidavit (none / 0) (#2)
    by Jeralyn on Mon Apr 30, 2012 at 05:09:50 PM EST
    in describing it to the media. It's apparently an audio affidavit, not written.

    Zimmerman's Friend Speaks Out; Trayvon Martin's Family Demands Justice; Bounty for George Zimmerman's Arrest CNN March 26, 2012 Monday,

    Anderson Cooper: Now remember Martin's family has an affidavit from a young woman who says she was talking on the phone with Trayvon Martin before he was shot.

    ....COOPER: There is an affidavit that the -- Trayvon Martin's family has gotten from apparently from a young woman who was allegedly on the phone with Trayvon Martin just prior to the shooting in which she says, according again to this affidavit that the family has brought out, ....

    and around the same date:

    ASHLEIGH BANFIELD, CNN ANCHOR: You're watching Benjamin Crump, the attorney for Trayvon Martin's family, as he plays a recorded affidavit from a 16-year-old girl who says she was on the phone with Trayvon Martin just before he was gunned down in Florida.

    ....SUNNY HOSTIN, CNN LEGAL ANALYST: I And this morning, I spoke at length to one of the Martin family attorneys during which time she told me about the existence of this affidavit, this taped affidavit. And what she told me was that the girl, the young girl and Trayvon Martin had been on the phone for most of the day.

    So They Say (none / 0) (#3)
    by nomatter0nevermind on Mon Apr 30, 2012 at 05:21:04 PM EST

    It sounds like CNN is just taking the word of the Martins' lawyers. I'd like to know if anyone neutral has verified that Dee Dee gave that statement under oath.


    since she's since been (none / 0) (#6)
    by Jeralyn on Mon Apr 30, 2012 at 05:59:49 PM EST
    interviewed by investigators it really doesn't matter. Let's move on, back to the legal issues.

    A Legal Issue (none / 0) (#7)
    by nomatter0nevermind on Mon Apr 30, 2012 at 06:12:25 PM EST
    I have one more question about the alleged affidavit, which I think is a 'legal issue'. What if Dee Dee testifies in court to something inconsistent with her statement to Crump, and O'Mara wants to impeach her with the statement? Won't it make a difference whether or not the statement is sworn?

    Not that much - just goes to weight (none / 0) (#8)
    by expy on Mon Apr 30, 2012 at 06:49:32 PM EST
    A witness can be impeached with any inconsistent prior statement, sworn or not.  

    The only significance of a sworn statement (vs. unsworn), is the weight that it may be given, as well as the way that question might be framed. For example, it's harder for a witness to say that they "misspoke" in a sworn statement, because of course the attorney on cross-examination will point out that the statement was made under oath.

    Obviously it would be a big deal if a witness completely recanted a prior sworn statement, but that's not likely to happen.


    "Oral Affidavit" (none / 0) (#4)
    by RKF on Mon Apr 30, 2012 at 05:25:26 PM EST
    I have never heard of an "oral affidavit" - that is what I would call a sworn statement

    I agree (none / 0) (#5)
    by Jeralyn on Mon Apr 30, 2012 at 05:58:36 PM EST
    But that's apparently the word used by Martin family lawyers  in describing it to the media, including during telephone interviews. This reference sounds like it was Natalie Jackson who used the word.

    Sunny Hostin: And this morning, I spoke at length to one of the Martin family attorneys during which time she told me about the existence of this affidavit, this taped affidavit. And what she told me was that the girl, the young girl and Trayvon Martin had been on the phone for most of the day.

    I don't think it's the right term either and I've updated my post to reflect that the "affidavit" they described may be an oral recording of her phone conversation with the lawyers.


    More than one piece of DeeDee evidence? (none / 0) (#11)
    by cboldt on Tue May 01, 2012 at 10:53:28 AM EST
    IIRC, Corey's team of crack investigators says it has interviewed DeeDee.  That being the case, I assume there is Crump's recorded affidavit, and separate from that (although the recording is perhaps referred to during the state's questioning), the investigator's interview and any statement or statements coming from that.

    Prosecution Interviewed Dee Dee (none / 0) (#12)
    by nomatter0nevermind on Tue May 01, 2012 at 03:42:50 PM EST
    At the bond hearing, Detective Gilbreath testified that his partner, Detective O'Steen, interviewed the telephone friend.

    yes she was interviewed (none / 0) (#14)
    by Jeralyn on Tue May 01, 2012 at 07:57:29 PM EST
    weeks later by investigators. But she was "discovered" by Crump who took a recorded statement (that ABC News was allowed to listen to) and which he then described point by point at a press conference and provided to state investigators and the Justice Dept. My point was that he participated in the evidence gathering process.

    Phone Records (none / 0) (#15)
    by MSimon on Thu May 03, 2012 at 05:32:38 PM EST
    Does anyone know if DD's phone records for the day in question are in evidence?

    O'Mara will certainly want them to confirm times.


    Estimated date (none / 0) (#9)
    by rickroberts on Mon Apr 30, 2012 at 08:53:03 PM EST
    When do you think we will see discovery?

    The public records case is independent (none / 0) (#10)
    by cboldt on Tue May 01, 2012 at 10:49:06 AM EST
    Florida law provides that material becomes a public record when it is "required by law or agency rule to be given to the person arrested."  There is a separate trigger for making public, and that is "Documents given."

    O'Mara can stiff-arm receipt from the state for strategic purposes of delaying the preparation of a defense, but the press has a separate cause of action.

    The special prosecutor's office has been asserting the records are exempt because they are active criminal investigation information.  The special prosecutor's office is incorrect on this point.  Jeralyn linked to Florida State Sunshine Law Handbook, which covers the questions of material required to be turned over to defense by mutual discovery rules, and on the relationship between "pending prosecution or appeals" and the discovery rule - the discovery rule prevails.

    The statute and case law say that material that is required to be turned over (whether it is turned over or not) is, by definition, NOT criminal investigative information; and the difference between "active" and "inactive" is immaterial.

    As for O'Mara's statement that he needs to reduce his motion to writing, the only issue I see, and in principle it may require argument (mostly as against the press), is redacting witness names.  However, the court has agreed in an order from the bench to redact witness names as well as the customary redaction of address and phone number.

    I don't see a need for repeating the "motion" "granted" routine, when the motion amounts to asking to redact witness identification from the discovery materials.  That has been asked for, and granted.  There is no opposition from the state; there is no opposition from O'Mara; the court granted the motion as to discovery, on April 27th.

    I do agree that the Court will facilitate or tolerate stonewalling of public disclosure by O'Mara and the state; but posted to point out that demand for public records is also operating outside of the court venue; and that in my opinion, O'Mara's "haven't demanded it yet excuse" doesn't hold water.  He is entitled to the state's evidence; it is a clerical matter to redact it; redacted and unredacted material can be presented to the Court under motion to seal the unredacted version; fini.  Meanwhile, there is evidence that does not implicate witnesses, such as photos of Zimmerman.

    Corey's previously granted censoring (none / 0) (#13)
    by willisnewton on Tue May 01, 2012 at 05:40:21 PM EST
    Under the original judge it seems a journalist made a request to the city of Sanford to share police department surveillance video of Zimmerman LEAVING the police building the night of the shooting.  His request was denied at the time citing the filing by Corey of a gag order.  Would such a request today be subject to this earlier order?  The first release of the arrival was timed almost as a sop to the hungry press and concerned crowds as it came via the Sanford city manager I think, at a time when charges have not yet been filed.  The video was a symbolic "perp walk" in a sense at a time before Corey had filed her charges and scrutiny was intense on the case. Curiously the request for the leaving video predated the assignment of a judge to the case, according to journalist.  Around this same time the arriving video was removed from the city of Sanford website as well, citing the familiar "ongoing investigation" excuse.  I tend to think this was more of a personal favor to Corey by city manager Bonaparte than an actual legal requirement.  IANAL however.  Can somone shed some light on the legalities here?  I'm sure the public would like to see this video if it's available for the asking.