Ironically, the email wound up cited by the prosecution, which seeks to demonstrate that O’Mara has inappropriately engaged the public in discussions about the case and has created a mechanism where potential jurors can communicate with him and each other.
In a memo filed late Thursday, Assistant Duval County State Attorney Bernie de la Rionda said O’Mara has used social media to “control and filter commentary about the case, in effect bypassing the regular media ... [to] communicate the spin they want potential jurors to read about the case.”
He also cited about a dozen Miami Herald, CNN and other media interviews O’Mara gave in which he commented on evidence or witnesses. De la Rionda admitted, however, that Zimmerman’s Fox interview was beneficial to prosecutors.
“This case should be tried in the courtroom and not in the media,” de la Rionda wrote.
Miami Herald attorney Scott Ponce, who will present the media position in court Friday, said the Supreme Court has ruled that jurors must be impartial – not completely ignorant. The motion, the state’s second attempt at muzzling O’Mara, should be denied, Ponce added.
"The State has not cited any evidence establishing that anything anyone has said creates the type of prejudice or risk to a fair trial that is necessary to support a gag order," Ponce said.
Although gag orders in criminal cases are not unheard of, they are generally difficult to obtain. Lawyers are allowed to speak, as long as what they say isn’t “substantially likely to materially prejudice a trial.”
The issue of pre-trial publicity came up almost 40 years ago, when Cleveland doctor Sam Sheppard – inspiration behind the movie “The Fugitive” – was released from prison after the Supreme Court decided that publicity turned his murder case into a “carnival atmosphere.”
The nation’s highest court ruled on gag orders in the early 90s, when a Nevada lawyer was disciplined for holding a press conference blaming police for a theft the defendant was charged with. The court said the attorney’s speech was protected, but recognized that there are circumstances in which lawyer rhetoric can be curtailed.