The Duval County state attorney has a message for George Zimmerman’s defense attorney: Zip it.
Assistant State Attorney Bernie de la Rionda filed papers Thursday in Seminole County Circuit Court asking a judge to muzzle defense attorney Mark O’Mara, whom the prosecutor accuses of taking to the Internet to try his case in the media.
“Unless defense counsel stops talking to the media about the case, in person or by use of defendant’s website, it will [be] more difficult to find jurors who have not been influenced by the media accounts of the case,” de la Rionda said. “...An impartial jury could never be seated.”
De la Rionda asked Circuit Judge Debra Nelson to issue a gag order, which would silence the defense, prosecutors, law enforcement and any of the lawyers’ employees. If the judge agrees, lawyers and investigators would not be allowed to make any statements outside the courtroom about the case, evidence, credibility of witnesses or possible sentences. If the judge allows it, they’d even be kept from opining about Zimmerman’s guilt or innocence.
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It’s the second time de la Rionda has made such a request. He made the same motion in April before a different judge. That judge declined the request, but was later forced off the case for other reasons.
De la Rionda, who never speaks publicly about the case, filed the motion after a particularly active spell on the website O’Mara maintains to update the press and the public about the case.
In the past few days, O’Mara posted motions asking for a monthly review of discovery, arguing that de la Rionda has yet to turn over key evidence, and submitted inaudible recordings and incomplete materials.
O’Mara also wrote a missive about the role of race in the case, and, in a separate communiqué, clarified that Zimmerman’s brother did not have approval or input from the defense when he appeared on TV and sent argumentative tweets to lawyers involved in the case.
Although the defense’s Facebook site was taken down in August, visitors to the website can still post comments on O’Mara’s announcements — and the firm sometimes responds.
“If there is no limit to attorneys commenting about the facts in the case, attorneys for the state could rebut … and the commentary would never end,” de la Rionda wrote.
The two sides will face off Friday in court to discuss a series of other issues. It’s unclear whether the judge will rule on the gag order Friday.
O’Mara was not available for comment late Thursday.
Media attorneys, who are scheduled to speak at Friday’s hearing to fight a different state motion, are expected to object to the gag request.
“Attorneys, like anyone, have a First Amendment right to speech, and the Florida Bar has issued rules on limits on what attorneys may appropriately say,” said Scott Ponce, an attorney for The Miami Herald and other media companies. “It’s better to let the Florida Bar regulate speech by its members than have a court get involved.”
Ponce plans to attend the hearing to object to a motion de la Rionda filed last month in which he asked the judge to force O’Mara to file his subpoenas under seal.
Prosecutors objected when O’Mara publicized a list of subpoenas he planned to issue for Trayvon Martin’s school, Facebook and Twitter records. De la Rionda now wants future subpoenas to be issued in secret, something both defense and media lawyers say is not allowed under the law.
“The state has the ability to toss as wide a net as it wishes into waters chopped up by storms created by racial innuendo and political pressure,” O’Mara shot back after being accused of going on a “fishing expedition.” “It cannot drown within that net a criminal defendant’s constitutional rights to prepare an appropriate trial and to defend himself against that tide.”
Judge Nelson may rule Friday on whether to allow the social media and school record subpoenas to move forward.
On Monday, Facebook lawyers sent a letter to O’Mara vowing to fight the subpoena. Trayvon’s social-media account, Facebook attorney Furqan Mohammed said, is not only irrelevant to the case, but by law cannot be released. Mohammed said federal law protects the account information, and added that an argument over the issue would have to take place in a California court.
“We think the attorneys for Facebook are essentially saying the same thing we have been saying all along: Trayvon’s Facebook and social media are completely irrelevant,” said Benjamin Crump, an attorney for Trayvon’s family. “All of these issues are distractions that take the focus off George Zimmerman.”
Zimmerman is charged with second-degree murder for the Feb. 26 killing of Trayvon, a Miami Gardens high school junior. Zimmerman claims the unarmed teen attacked him and he was forced to shoot in self defense.
Trayvon’s parents are expected in court Friday to urge prosecutors to push for release of Zimmerman’s medical records.
“The family thinks those records are far more relevant,” Crump said.