George Zimmerman’s defense lawyer is a familiar face on cable TV news programs, holds the occasional press conference, gives interviews to newspapers like this one, and keeps the public posted on the goings-on in the case via a controversial website.
The murder case has its own Twitter account and had a Facebook page, but defense attorney Mark O’Mara shut it down after unwieldy streams of comments.
On Friday, a Seminole County Circuit Court judge in Sanford will decide whether O’Mara’s open-door policy for social and traditional media amounts to unfair spin and should be slammed shut. A hearing will be held to debate the prosecutor’s request to gag all lawyers, their employees and law enforcement involved in the case.
The move is being fought by news companies, including the Miami Herald, which argue that silencing the lawyers would violate the media’s First Amendment rights.
O’Mara maintains that he speaks to the media and launched a website to counter extraordinary negative publicity in the first weeks of the case, when Zimmerman was in hiding, did not have a lawyer, and was the subject of saturation news coverage for having killed an unarmed teenager who carried Skittles and iced tea.
Zimmerman says he shot unarmed Miami Gardens teenager Trayvon Martin in self defense. When civil rights leaders and many members of the public did not believe Zimmerman, the slain teenager became a symbol of racial injustice that dominated news programming for weeks.
O’Mara took the case in April, and later launched a website where he posted information such as a medical record that documented Zimmerman’s injuries. He posted videos of Zimmerman’s statements to police and released the letters the defense sent requesting copies of Trayvon’s school and social media records.
At one point, O’Mara made the rounds to the national TV networks, shopping an exclusive interview with his client. Zimmerman settled for Fox and ditched Barbara Walters, who flew to Central Florida for the scoop.
“I don’t think a gag order is necessary,” O’Mara said in an interview. “Publicity in and of itself is not bad. I do speak more than I normally would, but I know the rules, and I am cautious not to go anywhere near them. ... We know what not to say, and we are not saying it.”
He added that he’s so knowledgeable about Bar Association rules governing lawyer’s speech that he gives workshops on the topic.
The hearing comes three days after activists revealed that O’Mara’s firm reached out to Zimmerman supporters on the web for help preparing for Friday’s motion. An email leaked on Facebook by a commenter on a conservative website showed O’Mara – or more likely one of his employees – asked supporters to scour the Internet to help come up with any potentially questionable statements O’Mara made since taking the case.
“We’re confident ALL our statements are easily defendable, we just want to know what we’re likely to have thrown back at us,” the email said.
People who support the murder charges spread the email around on Twitter, arguing that the note shows O’Mara takes cues for his case from right-wing bloggers, some of whom have made racially insensitive remarks about the Martin family and portrayed the teen as a thug.
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.