Time for A Gag Order in George Zimmerman Case?
Is a motion by George Zimmerman's lawyers for a gag order on trial witnesses on the horizon?
George Zimmerman's friends, Mark and Sondra Osterman, thought they would help George out by writing a book about his good qualities. The book is scheduled to be released shortly, and the Ostermans are going to be on Dr. Phil the week of September 10 discussing it.
Mark Osterman has been listed as a potential state witness. He accompanied Shellie Zimmerman to the police station the night of the shooting of Trayvon Martin to pick George up when the police were done questioning him. He also drove George to the site of the shooting the next day where police filmed George doing a video re-enactment of his encounter with Trayvon. Osterman, a federal air marshal who used to be a Seminole County deputy sheriff, is featured in the promos for the Dr. Phil appearance as Zimmerman's best friend. [More...]
The discovery released in the case includes an interview with Osterman on April 26 by the FDLE. (See pages 77-80 of the 284 page discovery.)
In their book, a portion of which is purportedly excerpted by an anonymous poster at Conservative Treehouse, a conservative blog supporting George Zimmerman, Mark Osterman relays what George told him about the shooting during the car ride from the police station. (The Zimmermans stayed with the Ostermans that night, and then for the next several weeks.)
Why would the Ostermans relate what George purportedly told them? According to reports by friends of George, he did not approve of either the book or the timing. Either did O'Mara, although O'Mara hasn't confirmed this.
The problem is not so much pre-trial publicity and prejudicing the jury pool -- it's that the Ostermans are handing the state another opportunity to impeach George Zimmerman's version of events if he takes the stand -- and it will be done using words Zimmerman may not have said. I assume a ghostwriter was involved in the writing. How much license did he take with Osterman's recollection to make the statements more compelling? Even if they are Osterman's words verbatim, that's not the same thing as being George's words. Osterman wasn't taping George, and even if he wrote his recollection of what George said in a journal that night (which I doubt), it's still his recollection of what George said, not what George actually said.
The Ostermans account of what George told them is obviously going to be scrutinized for inconsistencies and compared to what George told police in his various interviews. George's anonymous friend posting at Treehouse is excerpting the book to get out ahead of the inaccuracies. He lists several things in Chapter one he says are factually incorrect in the Osterman version.
If the Ostermans wanted to help George, why didn't they just write about his life and character, with examples from before and after the shooting, leaving out what he told them about it?
As Diwataman, who is now blogging as well as making videos on the case, wrote in the comments at Treehouse, this book is destined to be listed on the state's next supplemental round of discovery -- just like George's interview with Sean Hannity. The same probably goes for the Dr Phil interview. I've never seen a Dr. Phil show, but why would the Ostermans think Dr. Phil is different than any other talk show host or believe he wants to portray Zimmerman in a favorable light? Dr. Phil wants ratings and sensationalism is what gets them, not a rational discussion of the facts.
I don't believe the Ostermans did this for money or out of selfishness or for fame. I think they did it out of arrogance, believing they know best how to help George. When your friend's life is on the line, and you are neither a media expert, a renowned author or a lawyer, the best way you can help is to respect his choice of counsel and let that counsel make the decisions. Injecting yourself into the discourse is unlikely to help and quite likely to backfire.
O'Mara has been fairly judicious in his extra-judicial comments while the States Attorney's Office wisely says next to nothing about the case. The lawyers for the Martin family continue to make what I view as objectionable comments, but not to the extent they did at the beginning. Witnesses Cutcher and Mora have shut up, as has the distraught older woman commonly referred to as "the teacher" who was making the rounds for a while telling her story using a disguised voice that fooled no one since she used so many of the same phrases that were in her statements to police.
By the time this case gets to trial, no one will remember the Ostermans' book or their 15 minutes on Dr. Phil. Still, what they have written and what they say publicly could potentially be used to impeach George as a witness at trial if George testifies differently from what the Ostermans say he told them in their book. All the state has to do is ask George on cross-examination if he ever said X. If George denies saying X, they call Osterman to the stand and ask if George ever told him X. If Osterman says yes, it's good impeachment evidence.
There are plenty of cases in which judges have included potential trial witnesses in their orders restricting extra-judicial comments. It was done in the first Roger Clemens trial, in the Kobe Bryant sexual assault case in Eagle County, CO. In a case in Alabama in June, the court order reads:
Pursuant to an oral motion made by the District Attorney, any potential witnesses in the above-styled matter are prohibited from making any statements to members of the media, or directly discussing their involvement in this case or any current trial proceedings with members of the media. This includes, but is not limited to, interviews with reporters representing media outlets. The prosecuting attorneys and defense attorneys arc not subject to this gag order. The defense had no objections to said motion.
Sondra Osterman purportedly wrote an email to the Conservative Treehouse warning them that their publication of any excerpt of the book would be a copyright violation and they would take action. She also says that O'Mara had been given a copy of a portion of the unedited draft of the book and was asked if anything needed correcting, and he didn't respond to them.
That doesn't mean he approved the book or didn't have objections. In this April 30th order rejecting the state's request for a gag order, Judge Lester warned the lawyers in the case (including those representing third parties) that they are subject to ethical rules which prevent them from making prejudicial extra-judicial comments or assisting others in making them. Rule 4.3-6 of the Florida ethical rules for lawyers says:
(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.
Assuming O'Mara did read the draft of the book, the minute he read the first statement that conflicted with what George said, Osterman's book became one with the potential for materially prejudicing the case. He couldn't provide them counsel on it, or assist them.
Even if O'Mara takes a different view of the ethics rules, or didn't read the draft, I think he still wouldn't want to endorse it or be associated with it. At the very beginning of the case, when he moved to recuse the first judge because her husband was in the same firm as CNN commentator Mark NeJame, O'Mara told the court he feared that because Zimmerman's family had once asked NeJame to represent Zimmerman, they might feed NeJame exclusives and he wouldn't be able to control the message. If that's how he felt about his good friend and fellow lawyer (who was also the one who referred Zimmerman to him), I can only imagine how strongly he resents George's friends stepping on his toes by speaking out on their own.
So is Mark O'Mara spending the weekend writing a motion for gag order and request for a restraining order? Even if a gag order is issued, would it apply retroactively to a show that's already been taped and the airing of which is outside the Osterman's control? I doubt it. And if the book is already written and in the hands of the publishers, could the Ostermans call off its release even if they wanted to? I doubt it. Does O'Mara have any grounds to stop Dr. Phil or the publisher? None that I can think of.
But it might still be a motion worth making because the Court could enter an order now which would stop the next Mark Osterman (or some witness sympathetic to the state's case) from talking out of school.
The best thing for George Zimmerman right now is to stay out of the public eye. He has nothing but time on his hands, since his security situation doesn't allow him to work. He needs to hunker down with his attorneys, pour over discovery and work with their investigators to find even bigger holes in the state's case.
While I think George handled himself okay in court and in his Hannity interview, in that he seemed earnest, for lack of a better word, he also comes across as a little too stiff and nervous. (Who wouldn't when your case is being televised for the viewing pleasure of the entire country?) Still, he could fix that. He might consider using some of the funds he collected on a witness coach to get more at ease in the courtroom and on the witness stand, and to learn how to let the real George, whoever that is, come across to the jury. If the jury perceives him as authentic, as showing them the real George, when it comes to making a credibility determination, the jury may be more likely to side with him.
How is that done? As an example, check out the witness coaching of North Carolina author Michael Peterson when he was on trial for murdering his wife, from the award winning documentary on the case, The Staircase Murders. Here's the segment -- the coaching begins at 17:10 into the segment. (Yes, Peterson was convicted, although his conviction was reversed due to misconduct by the central crime lab witness and he was released from prison pending a retrial. The order is here.)
Back to the basic question: Is a motion by the Zimmerman defense team to gag witnesses on the immediate horizon, and if not, why not?
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