This article first appeared in Lawyers.Com for which I was interviewed on the denial of the gag order.
State Loses Second ‘Gag Order’ Battle
The email, sent the week before the trial judge was to rule on whether a gag order should be placed on O’Mara, was an attempt to help the defense find any and all statements he’d made in the media. And it could have looked like an admission that he had been improperly vocal about Zimmerman’s case.
But instead of denying or ignoring what could have been a total nightmare for the defense, O’Mara posted the email on his George Zimmerman Legal Case web site and spun it in his favor.
“We’re confident that everything we’ve posted, and everything we’ve said publicly is proper and well within our rights, but we know that on Friday, the State is likely to find the most questionable thing Mark’s said and present it to the Court,” says O’Mara on the site.
It worked: Judge Deborah Nelson ruled on Oct. 29 that a gag order against O’Mara is not necessary. It was the second time the state failed to silence the defense lawyer: On May 1, the former trial judge in the case, Kenneth Lester, declined to impose a gag order.
Zimmerman and O’Mara went on to be interviewed on Fox News by Sean Hannity, and O’Mara and Zimmerman both continued to post updates about the case on the Internet.
Defense Gains Upper Hand
“The fact that the judge did not order a gag order means the Florida judges do not think the information disseminated to social media network outlets will prejudice the case or selecting the jurors,” observes Debbie Hines, a Washington, D.C., trial lawyer and former prosecutor.
“I think the judge should have at least admonished the parties that she may order a future gag order, if things continue along this path,” Hines adds. “The case should be tried in the court room.”
Social media has given defense lawyers a whole new way to try to sway public opinion in their clients’ favor — all in the hopes that when it comes time to select a jury, potential jurors will have had a good look at the defense’s side of things.
“The prosecution is at a disadvantage in this regard,” Hines says of O’Mara’s crafty use of social media. “O’Mara at this point has an upper hand.”
Canny Use of Media Continues
Zimmerman’s lawyer announced a new strategy following his win on the gag order. Some of the responses to his request for gentle readers to send in what they thought were improper uses of media indicated that his selective publication of public documents in the case amounts to “effectively editorializing with our decision of omission or inclusion,” says O’Mara in a Nov. 13 posting.
“From now on, we will post ALL public documents associated with the Zimmerman case, including motions filed by the defense and the State, as well as orders filed by the Court,” O’Mara says.
He adds that he defense team “will continue to maintain the previously guarded privacy of certain witnesses, and will not post the names of witnesses being deposed unless their names have been previously disclosed by the State,” some of which include police and witnesses who have voluntarily disclosed their identity to the media.
This new policy is another canny move — a likely dig at the state, which made a rather public stumble on Nov. 8, when lead prosecutor Bernie de la Rionda leaked a list of the names of witnesses, violating a court order to keep them secret.