Cross Posted from Frederick Leatherman Law Blog

Lawyers for prosecution, defense and various news media organizations will be in court this afternoon before Judge Debra Nelson to argue about various discovery related issues in the Zimmerman case. This should be interesting, so you may want to pay attention.

The always reliable and accurate Frances Robles of the Miami Herald has the breakdown:

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 would even be kept from opining about Zimmerman’s guilt or innocence.

I am not surprised by the State’s motion. The defense has been trying its case in the Court of Public Opinion for months now and the prosecution has at long last run out of patience.

Of course, the prosecution has benefited more than the defense from this strategy. After all, who can forget George Zimmerman’s appearance on the Sean Hannity Show. His smirks, denial of regret, and shifting of responsibility for Trayvon Martin’s death onto God Almighty Himself has to be one of the greatest moments in network television history for this still young second decade.

Although there may still be more gold to be mined in the proverbial “them thar hills,” I think the prosecution comprehends the notion of diminishing returns and wants to cash-in its winnings and move on to other pleasantries of a somewhat more formal nature.

The defense and media lawyers will be objecting to the motion and I do not expect Judge Nelson will seriously consider granting it. Florida’s Sunshine Law is an impressive barrier to a gag order. I predict she will deliver a sternly worded rebuke to defense counsel and we shall see what we shall see.

Judge Nelson also will be hearing argument concerning the defense request to subpoena Trayvon Martin’s middle school and high school records. The State objects to the request on the grounds that the information in the records, whether good or bad, is protected from disclosure by privacy statutes and it would be irrelevant and inadmissible at trial. Prosecutor Bernie de la Rionda called it a “fishing expedition.”

As I have said before, I believe the rules of evidence permit the defense to introduce evidence of a pertinent character trait in support of Zimmerman’s claim that Martin was the aggressor. For example, if Trayvon Martin was known to be an aggressive bully who started fights, the defense would be permitted to bring that out at trial. Specific acts of misconduct would not be admissible, however. The defense would be limited to introducing the evidence as a character trait. Assuming such evidence exists, which I doubt, it might be in the school records. Therefore, I believe the defense has a legitimate reason to want to review the records.

The problem is that the defense may post Martin’s records on its website, regardless whether they contain any reference to misconduct of any kind, whether admissible or not. The State already did that with George Zimmerman’s school records and has apologized for doing so, claiming it was a clerical mistake. Now it seeks to prevent the defense from administering a dose of what’s good for the goose is good for the gander.

There is a solution to this sort of problem and I have previously recommended it. It’s called in camera review. No, it does not involve a camera. In camera review is a legal term that means in chambers. That is, the school records would be filed under seal and Judge Nelson would review them in her chambers and decide whether they contain evidence the defense has a right to review. She discloses it to both sides, if they do. Presumably, she also would order both sides not to publicize the records and might even threaten to hold them in contempt of court, if they were to violate the order.

As I said, I doubt the records contain the information that the defense has a legitimate reason to seek, so this dispute will likely be more like a proverbial tempest in a teapot. If there is any substance to it, there is a solution to deal with the records and protect privacy that has worked in the past.

The State also wants Judge Nelson to order the defense to file its requests for subpoenas in the future under seal so that it cannot publicize them on its website before submitting them for the court’s approval. This argument is part of the prosecution’s strategy to stop the defense from trying its case in the Court of Public Opinion.

This is another issue that Judge Nelson can handle with a stern warning and threat to use her contempt powers. I predict she will do so rather than establishing a special rule for O’Mara, as opposed to all other defense counsel, when seeking court approval for subpoenas.

The prosecution also is seeking George Zimmerman’s medical records at the clinic where he sought a permission-to-return-to-work authorization the day after the shooting. The defense objects on privacy grounds. I think the defense likely waived doctor-patient privilege and privacy concerns when it released a portion of his records and has intimated that his ADHD condition might explain some of his inconsistencies.

Finally, there is an interesting issue about the discoverability of Trayvon Martin’s social media accounts (Facebook and Twitter). A lawyer representing Facebook has refused to comply with the subpoena.

Once again, here’s Frances Robles,

On Monday, Facebook lawyers sent a letter to O’Mara vowing to fight the subpoena. Martin’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 arguing the issue would have to be done 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 Martin’s family. “All of these issues are distractions that take the focus off George Zimmerman.”