George Zimmerman: Continuance, Sanctions and Gag Order Sought

There's been a spate of new pleadings in the George Zimmerman case. (This morning's filings are discussed here.) The defense is asking for a trial continuance (motion here) because of expert Alan Reich, who it appears, is not a speaker identification expert or analyst but a "speech" analyst. The state didn't turn over his report making this evident until May 10. It wants more time to verify Reich's credentials and determine whether his area of expertise really is an area of expertise, and to retain its own expert. (My analysis of Reich's report, which I called a joke, is here.)

The defense also filed another motion for sanctions against the state (available here). Turns out, the state didn't deliver and hasn't delivered any reports of items extracted from Trayvon Martin's phone, or identify any items extracted from the phone. What it did was turn over a raw "bin" file which is unreadable without special software. The state has the software and the defense says it is "undeniable" that the state analyzed what's in the bin files and compiled reports, but failed to identify any items extracted from the files as exculpatory or impeaching and failed to disclose any reports on the items extracted. As O'Mara says, it's like they turned over the letters A to Z and said all the words you need are in there, go find them. That's not what Brady and Giglio require. [More...]

If the state reviewed the photographic images, videos and text messages in the bin files and found any that could be favorable to the defense or impeaching of state witnesses, it has to identify and provide them. The defense was able to retain an expert with access to software that could read some of the files, which is how it obtained the materials it disclosed earlier today. But it has no idea if the state is sitting on more of these kinds of items, since it refuses to acknowledge its obligation to turn them over.

The defense writes:

The State was fully aware at that time that there was information resident on Trayvon Martin's cell phone, including pictures of Trayvon Martin in possession of at least one weapon, pictures of marijuana plants, pictures of Trayvon Martin smoking marijuana, pictures of marijuana blunts, and texts discussing, securing or purchasing firearms, and bragging about being involved in fights, etc.

It accuses the state of continuing to hide discovery and disclose discoverable material.

The State, for its part, makes a third request for a gag order on the defense (available here.) In my view, its their weakest one to date, consisting of two complaints, neither of which has any substance.

4/30/2013, Defense Counsel commented about potential evidence to HLN.

Watch the video the state cites in support of its allegation. O'Mara didn't opine on the evidence, he said the experts are all over the place. He said the jury might decide either way on its own without expert testimony. That's not a prejudicial extrajudicial comment. The rules clearly allow lawyers to talk about what is at issue in the case and what issues will be decided at an upcoming hearing.

The state also complains:

Defense Counsel commented to HLN about a matter discussed during the incamera hearing that were supposed to remain confidential until the Court determined it should be disclosed.

Here's the video it cites. On April 30, attorney Don West confirmed to HLN the jury will be sequestered and a juror questionnaire will be utilized. At the hearing on April 30 (see very end of hearing, video here) the judge said nothing in court about the jury matters being confidential. She referenced the juror questionnaires in open court. She asked the prosecutor whether it was necessary to have discussions about the juror issues on the record. The prosecutor responded the discussion did not have to take place on the record. (He did not say the matters were confidential.) At O'Mara's request, the judge agreed to meet with the lawyers to discuss the issues that day after lunch. The meeting was held in chambers. So the court acknowledged there would be a a questionnaire, and on May 10, the defense filed a motion seeking an anonymous jury (and asking that the jury and jury panel be sequestered.) None of this is secret let alone prejudicial.

The state cites Rule 4-3.6 of the Rules Regulating the Florida Bar:

Trial Publicity

(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 communications 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 or an imminent and substantial detrimental effect on that proceeding.

(b) Statements to 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. (my emphasis)

In my opinion, the only lawyers making prejudicial comments to the media are those representing the Martin family. Today, they referred to the release of defense discovery about Trayvon Martin as "red herrings" and a "distraction." Those are comments on the evidence with a tendency to prejudice the public. The state wants it both ways. They want Crump to be considered counsel on the case for the purpose of avoiding having his deposition taken (which he is not) but they don't ask that Crump & Co adhere to the ethical rules for lawyers when making public comments.

That the state complains about O'Mara and West while giving Team Crump a pass speaks volumes about the blinders the state has donned. It's okay for lawyers associated with its side of the case to prejudice the public against the defendant, but when the defense accurately describe pleadings and court proceedings in neutral terms, it wants a gag order.

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    I hope (5.00 / 1) (#1)
    by DebFrmHell on Thu May 23, 2013 at 10:15:48 PM EST
    one of the channels will pick you for commentary.  You know more about this case than anyone else I can think of...and you have the credentials to back it up!

    Jeralyn... (5.00 / 2) (#6)
    by lentinel on Fri May 24, 2013 at 12:11:15 PM EST
    I don't think there is anyone in the entire world that is as thorough and caring as you when it comes to representing the entity of a case - or a situation involving different perspectives regarding a case.

    Thank you.

    That is a load of bunk (5.00 / 3) (#13)
    by bmaz on Sun May 26, 2013 at 10:53:30 AM EST
    What you cavalierly call a handout is what the Constitution and the law calls due process, right to confrontation, and proper disclosure to insure a fair trial.

    On Reich and Reasons for Continuance (none / 0) (#2)
    by cboldt on Fri May 24, 2013 at 05:29:40 AM EST
    I took the inquiry as one to include not just his areas of expertise, but also to probe the scientific methods behind "speech ID" (which I take as word identification).  "Speech ID" is not the same thing as "speaker ID," and Reich asserts conclusions in both areas.

    In addition to time to prospectively rebut Reich, the defense says it needs time to review the material extracted from the phone BIN file, and determine what effect, if any, it has on trial preparation.  I would think that the new information may create a need to re-depose some witnesses, on the new areas disclosed on the phone.  For example, Tracy Martin on his statement that he drove Trayvon Martin at least part way to Sanford on February 21st.

    News reports assign a delay of six weeks to O'Mara's request, but I see no suggestion as to desired duration of delay in the motion.

    Will the state reciprocate? (none / 0) (#3)
    by cboldt on Fri May 24, 2013 at 09:01:02 AM EST
    Bernardo has suggested that the defense has also committed discovery violations.  With the filing of a third Motion for Sanctions by O'Mara result in a reciprocal filing by the state?  The intensity is ratcheting up, which is expected, and both sides are likely to try to swamp the other.  It'll be interesting to see which side is better at "motion triage."  My money is on O'Mara, he seems to have a more level head under pressure.

    The state will almost certainly be filing a response to the Motion for Sanctions.  Other than that, and any new issues brought up by either side, I don't anticipate any action between now and Tuesday, May 28th.

    Who released the photos of Martin? (none / 0) (#4)
    by magster on Fri May 24, 2013 at 11:07:06 AM EST
    If the defense did that, that would seem to be more likely to prejudice a jury.

    And, the prosecution's discovery disclosure is a joke. I hope there's sanctions for that.

    It is the "Sunshine Law" (none / 0) (#5)
    by RickyJim on Fri May 24, 2013 at 11:53:33 AM EST
    Each side is obligated too give the other side what it might use at trial (and more I think), ahead of the trial.  There are also rules about what they are supposed to release to the public under "Sunshine Laws".  Although there have been complaints about what material has been publicly released by both the prosecution and defense, both sides have either said either they had to under the Sunshine Laws or "sorry, we made a mistake".

    Angela Corey Wants a Rule Change (none / 0) (#7)
    by RickyJim on Fri May 24, 2013 at 05:56:50 PM EST
    According to what was said at the end of this video, the Special Prosecutor thinks evidence should be released to the public only after a judge has ruled it admissible in a trial.

    zimmerman (none / 0) (#8)
    by morphic on Sat May 25, 2013 at 08:50:13 AM EST
      If something can't be replicated, is it science? If the only person on the planet able to hear what's being said is Reich, is it madness or genius?

    Regarding the gag order (none / 0) (#9)
    by ackbarsays on Sat May 25, 2013 at 11:53:31 AM EST
    cboldt posted over on Nettles' blog in relation to the gag order that he had been looking back at past motions filed in the case by the prosecution.  He found this:

    State's Response to Defendant's Motion to Permit Defendant to Appear in Civilian Clothing and Without Restraints in All Proceedings

    Defendant does so on the novel theory that "the manner in which [he] is portrayed by the media will have a tremendous impact on his ability to receive a fair trial." This is, obviously, a false premise designed to provide a foundation for a meritless claim. In fact, when the Defendant actually proceeds to trial ALL jurors (both prospective and seated) will be instructed (Per Standard Jury Instructions 1.0, 1.2, 2.1) that they are not to consider matters discussed or portrayed about the case outside the courtroom, including media both print and electronic. Jurors are presumed to follow instructions.

    Non sequitur (none / 0) (#16)
    by Cylinder on Sun May 26, 2013 at 02:37:43 PM EST
    Zimmerman did not ask for a copy of the software - he asked for the native-format data and all reports generated from that data. If the BIN file is the data, then the software analyses are reports.

    For sake of argument, would a prosecutor be allowed to PGP-encrypt exculpatory digital evidence and disclose only that data to a defendant?

    You Are Right About There Being a Problem (none / 0) (#19)
    by RickyJim on Sun May 26, 2013 at 05:25:21 PM EST
    It is the "adversary system".  The evidence is owned by the lawyers and a huge amount of time is wasted in the game of hide it and ambush them at trial.  Why the heck are US lawyers afraid of having an Investigative Judge be in charge of the police investigation and evidence collection and prosecution and defense get it at the same time?  Lawyers will be less important, that's why.  What an abomination that the US has no such occupation as "Investigative Judge" but plenty of "Jury Consultants".

    See Special Master (none / 0) (#23)
    by cboldt on Sun May 26, 2013 at 05:54:38 PM EST
    Plus, the trial system is emphatically not "trial by ambush."  See penalties for hiding evidence from an opponent.

    Does the Prosecution Know About That? (none / 0) (#28)
    by RickyJim on Sun May 26, 2013 at 06:22:48 PM EST
    BDLR always seems to have an excuse for not giving or telling the defense what he has been sitting on.  It is ridiculous to allow him to interrogate witnesses or tell the police what to get and analyze and dump raw files and force the defense to pay experts to format them.  Just like the defense, he should be allowed to ask the judge that certain evidence be collected and given to everybody.  Depositions should be in front of the judge, who asks questions too.

    He Has Got Plentry That the Defense Doesn't (none / 0) (#32)
    by RickyJim on Sun May 26, 2013 at 06:47:41 PM EST
    He has tagged along with investigators or told them what to get.  He shouldn't have any more privileges than the defense when it comes to evidence gathering.  What a complete waste was his incompetent interview of DeeDee.  To investigate is different than to advocate.  A wall of separation should be maintained between prosecutors and police.  Evidence gathering should go Police ----> Judge ---> Lawyers for both sides with requests for evidence going in the opposite direction.  Of course the Judge should be able to make requests of the police on his own.

    I Should Have Added (none / 0) (#34)
    by RickyJim on Sun May 26, 2013 at 07:06:59 PM EST
    I am not sure the defense knows where to look.  FDLE does not give all files on the case they have to the defense when they go to the FDLE office.  They have to make particular requests.  It is my understanding that in Florida, after the prosecutor gets a case, all investigation is done under the direction of the prosecutor so the latter knows quite well what is there.