Cross Posted from Frederick Leatherman Law Blog

Mark O'Mara gives a press conference

Zimmerman lawyer Mark O'Mara (Photo: Werth Media / Flickr)

I believe Judge Nelson should fine Mark O’Mara $1,500 for posting his Motion for Prophylactic Sequestration of Witnesses in the Zimmerman case on his website.

I criticized this bizarre motion in Zimmerman: Defense Motion for Prophylactic Sequestration of Witnesses Reaches a New Low.

I said,

First, O’Mara is revealing the opinions of cops overseeing an investigation. Their opinions are irrelevant and inadmissible. The evidence is whatever it is and it alone constitutes probable cause to believe a crime was committed or it does not.

Second, revealing their opinions in a motion is an underhanded way of creating an excuse to publicize that they opposed charging Zimmerman with a crime.

Third, if they were genuinely concerned about a need to order witnesses to not collaborate with each other, they should have filed the motion under seal.

Fourth, it would have been in the best interest of the defense to have the witnesses collaborate with each other so that they all objected to filing criminal charges, but that sounds like what they were going to do anyway. Therefore, there was no need for the relief he sought in the order.

I concluded:

For all of these reasons, seems pretty obvious to me that the real purpose of the motion was to publicize what should have been kept private; namely, that the brass did not want to charge Zimmerman.

The more that I think about this motion the more irritated I become.

The scope of permissible discovery is very broad and not only includes the right to discover all information relevant to the lawsuit; it also includes the right to discover all information that might reasonably be expected to lead to the discovery of relevant information.

Because the scope of permissible discovery is so broad, there have to be some limitations on what the lawyers can do with the information they obtain through discovery. Keeping the information private is one such limitation.

Let us now take a look at depositions.

Lawyers depose (i.e., question) the opposing party’s witnesses under oath in the office of the lawyer who represents the opposing party. Other than the two lawyers and the witness, the only person present is a certified court reporter who administers the oath to the witness and records everything said by the lawyers and the witness during the deposition.

There is no judge to rule on objections. Instead, objections are noted for the record and the witness answers the question. Later on, if the trial court orders the deposition published and it is read in open court, the judge can consider the objection and rule on it. Depending on the ruling, the answer given by the witness during the deposition may or may not be read in open court.

In extraordinary circumstances during a deposition, the lawyers may suspend it to go to the courthouse to seek a ruling on an objection before resuming. The basic idea, however, is to allow the lawyers to conduct a deposition to create a thorough and private record of witness responses.

I emphasize the importance of privacy because the scope of a deposition may intrude into sensitive and private matters that might embarrass a witness, or protected matters such as trade secrets that might compromise a business, if publicized.

O’Mara’s very public revelation, in his motion for prophylactic sequestration of witnesses, of what the witness disclosed during the deposition about the opinions of the members of the group of Sanford Police Department officials regarding whether to charge Zimmerman with a crime is a major game misconduct because he revealed private information that most of the members of that group did not believe Zimmerman should be charged. Not coincidentally, that information could benefit Zimmerman by influencing prospective jurors to believe that Zimmerman should not have been charged with a crime, let alone second degree murder.

Why is that bad?

The answer is that a jury verdict must be based only on the evidence admitted in court. The opinions of the police officials are not evidence and have no evidentiary value. The rules of evidence do not permit that type of testimony to be presented at trial because it might influence jurors to base their verdict on opinions or speculation of the police officials rather than the evidence.

O’Mara knows this or should know it and this is why he never should have filed his motion for prophylactic sequestration of witnesses. BTW, this is an extraordinary and unusual request that I have never heard of and I do not believe there is any legal authority that supports it. Nevertheless, he was so eager to publicize the dissenting opinions of the police officials that he filed the motion without citing any legal authority authorizing Judge Nelson to grant the relief he requested, despite a rule that requires a lawyer to cite legal authority in support of any request to have the trial court do something.

Then he published his motion on his website for all the world to see.

This is why I am so offended by what he did.

I would be furious, if I were Judge Nelson and I would strike the motion, hold him in contempt, and fine him $1,500. I would do this in open court at Friday’s hearing for all the world to see. I also would warn him that if he does it again, I would put him in the slammer for a week.

Then I would ask him to give me a reason why I should not impose a gag order as requested by the prosecution.

I would, of course, give due consideration to the Florida Sunshine Law and the public’s right to know what is going on. I would probably end up denying the motion for the gag order without prejudice. That would allow the prosecution to refile it, if it should decide to do so.

BOTTOM LINE: O’Mara needs to stop trying his case in the Court of Public Opinion.