SANFORD, Fla. – On the very first day George Zimmerman faced a judge on charges of murdering Trayvon Martin, it appeared the special prosecutor and Zimmerman's attorney were working together to keep certain records secret.
Right when it appeared that April 12 hearing was over, Special Prosecutor Angela Corey whispered something to Zimmerman's attorney Mark O'Mara -- and the microphones picked it up.
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"What about the sealing?" Corey asked O'Mara.
Immediately afterward, O'Mara raised his hand to get Seminole County Judge Mark Herr's attention, and then asked for "a complete sealing" of certain records.
Herr asked the state if it was in agreement. When the state said yes, the judge granted the sealing request.
After the hearing, Local 6's Tony Pipitone reported how the sealing was a violation of Florida law, according to longtime First Amendment attorney Richard Wilson.
"That order is so blatantly over broad that it will not stand any review by any court," Wilson said, adding that there should have been a motion setting forth the basis for sealing the document.
He was right.
Herr's order sealing records was later overturned by Seminole County Circuit Judge Kenneth Lester -- but it took several news organizations to hire attorneys to fight for the public's right to know before that happened.
Now there are new questions about whether Florida law allows Corey to keep the evidence she has in her custody from the public eye.
Lawyers disagree with Corey's position on Sunshine Law
When Corey is asked to disclose her evidence through a public records request, she says the law doesn't allow her to do so because O'Mara hasn't accepted discovery documents yet. Corey believes it's O'Mara's choice as to when she can let the documents become public before trial.
But several lawyers interviewed by Local 6 over the last several days disagree that Corey has the legal right to refuse to disclose more evidence to the public this far along in the process.
On top of that, Corey is required by Florida Sunshine Law to provide a written response when declining to release records, and a non-profit legal foundation told Local 6 the responses from Corey's office don't cut it.
For example, in response to a public records request to Corey for any evidence that "tends to negate the guilt of the defendant," known as exculpatory evidence, Corey's office told Local 6, "The records are exempt (from disclosure requirements) pursuant to Section 119.071(2)(c)1, Florida Statutes."
That statute allows active criminal investigative information to be exempt from public disclosure. But the special prosecutor's response didn't explain, in writing, the reasons why she believes the requested records actually meet the definition of "exempt" active criminal investigative information -- and several lawyers believe that's because they don't.
"The response does not comply with the statutory requirement that the custodian state with particularity the reason for the conclusion that the cited exemption applies to the Requested Records," said attorney Jon Kaney, the General Counsel of Florida's First Amendment Foundation.
Florida's Sunshine Law requires an agency denying access to records be specific about its reasoning, so the member of the public requesting records can challenge the agency's decision to withhold records, if its reasoning for claiming the record is exempt from disclosure requirements doesn't make sense.
Kaney, an expert in public record law, believes the type of records requested don't meet the definition of exempt active criminal investigative information -- and must be released even if Zimmerman's attorney hasn't yet gone to pick up the records himself.
"The records are not exempt because they are required to be given to the defendant at this time," Kaney said, referring to Section 119.011(3)(c)5, Florida Statutes, which explicitly excludes from the definition of criminal investigative information "[d]ocuments given or required by law or agency rule to be given to the person arrested..."
In other words, the Sunshine Law gives two avenues for the public to obtain information previously classified as criminal investigative information. The first avenue is when documents are actually given to a defendant, the second is when a law or agency rule requires the documents to be given.
That statutory definition of criminal investigative information, Kaney believes, when combined with Florida Rules of Criminal Procedure and its requirements that certain documents be given to the defendant, prevent Corey from being able to withhold the requested records as criminal investigative information -- because by definition they are not.
For example, Fla. R. Crim. P. 3.220(b)(4) states: "As soon as practicable after the filing of the charging document the prosecutor shall disclose to the defendant any material information ... that tends to negate the guilt of the defendant as to any offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations."
The charging document was signed and submitted by the special prosecutor on April 11, when Zimmerman was arrested. That means Corey was required to give any exculpatory evidence to Zimmerman as quickly as possible after that date, which prevents any such exculpatory evidence from being classified as exempt criminal investigative information, Kaney believes.
If a member of the public requests Corey disclose such evidence not classified as criminal investigative information, Kaney believes Corey can't deny the request on the basis that she's not required to disclose criminal investigative information.
Local 6 has interviewed several lawyers over the past few days who believe that Corey most not only share any exculpatory evidence with the public, but also share all of the discovery evidence Zimmerman's attorney demanded in writing, and certified was delivered to Corey on April 12. Corey has declined to do so when requested.
O'Mara's April 12 filing states: "Pursuant to Rule 3.220 of the Florida Rules of Criminal Procedure, the Defendant hereby respectfully demands that, within fifteen (15) days of the date hereof, the State Attorney disclose to and permit the undersigned attorney to inspect and/or copy any and all relevant information and materials."
The deadline of April 27 is significant, because at that point Corey is required to disclose the records to Zimmerman -- and once that happens the records no longer meet the definition of criminal investigative information exempt from Sunshine Law, according to Scott Ponce, an attorney hired by several news entities to fight for the public's access in the case.
Both sides have said they want witness names withheld, out of fear for their safety and to prevent news media from interviewing witness about out what happened. But neither side bothered to file a motion asking Judge Lester to keep that information secret before the 15 day deadline was up. And even records that likely don't contain witness information, like photos of the crime scene, Zimmerman's injuries or the autopsy report, are being withheld.
Without citing a court order or a valid exemption to the public record law, several lawyers told Local 6 they believe Corey must release all the discovery information to members of the public requesting it, now that the information is "required" to be given to Zimmerman -- even if O'Mara hasn't taken his opportunity to go pick it up.
O'Mara backtracks from original statement
O'Mara, however, disputes that the information needs to be released to the public now. Despite how O'Mara demanded discovery within 15 days of April 12 in his motion, on two occasions he told Local 6 -- once during an April 25 phone interview and again in person after Friday's hearing -- that the 15 day deadline that marks when Corey is required to turn over discovery to him, and then the public, doesn't start ticking until a defendant's arraignment. Zimmerman's is set for May 8.
The day after Local 6 published a story explaining how Ponce refuted O'Mara's deadline pegging discovery disclosure requirements to the upcoming May 8 arraignment, O'Mara backed off his initial statement and made a different argument about why Corey isn't required to release the discovery to members of the public.
"While the rules do state that discovery is due 15 days from demand, that is a right which George Zimmerman enjoys, and it is up to his defense team to decide how to handle these matters," read a statement on GZLegalCase.com, a website O'Mara setup partly to "dispute misinformation."
"We are delaying demanding the discovery until we can file motions to protect these witnesses," O'Mara's statement continues. "Once that is in place, discovery will flow to us, then the media and the public has access to it, under our rules."
But several lawyers Local 6 interviewed believe O'Mara is too late. They don't see how he can file a written demand for discovery within 15 days of April 12 with the court, and then somehow claim the deadline in Rule 3.220(b) doesn't apply -- just so that he can delay the public release of the records in order to file a motion to hide witness information he had plenty of time to file before the deadline.
One issue that could be adding to the confusion over the deadline, according to Orlando criminal defense attorney Lisa Figueroa, is that it's not unusual for prosecutors to take longer than the prescribed deadline to turn over discovery information to a defendant.
When the prosecutor misses the discovery deadline, criminal defense attorneys rarely go running to the judge demanding that they immediately comply, Figueroa said, because it's a deadline that's not generally strictly enforced.
But in this high-profile case, where millions of people have been waiting so long to find out what the truth about happened the night Zimmerman shot Martin, the deadline to make documents public is becoming a major issue.
And once O'Mara made the discovery demand, and became entitled to those documents within 15 days, Figueroa doesn't see how he can take away the public's right of access to documents required to be given to Zimmerman.
"He can't have it both ways," Figueroa said, adding that the lawyers would "need to find other grounds" for refusing to make the information public.
Another attorney who has been unable to point to any justification in O'Mara's efforts to extend Corey's clear disclosure deadline mandated within Rule 3.220 is H. Scott Fingerhut, Chair-elect of the Florida Bar Criminal Law Section.
Fingerhut, who graduated from Emory University School of Law, is an award-winning attorney who is called upon often to pen amicus briefs on behalf of local, state, and national organizations in defense of our liberties, according to his biography.
He has a passion for educating others about law, and did so as a professor at the University of Miami School of Law for 10 years, before accepting a position teaching topics like Criminal Constitutional Law and Procedure and Criminal Law Theory at Florida International University School of Law, where he now serves as assistant director of its Trial Advocacy Program.
Fingerhut, who has more than 23 years experience as highly rated criminal trial and appellate litigator, said he has never seen a case where "after the state is obligated to turn over discovery, it doesn't have to until the defense really wants it to" in order to prevent public disclosure.
"He's a smart lawyer," Fingerhut said of O'Mara. "Maybe he has an old case he dug up that shows he can do it, but I'm not aware of one."
Local 6's attempts this week to reach O'Mara and find out what exact legal justification he has for keeping records secret have gone unanswered.
And the court file still has no record of any new order filed by O'Mara to protect witness names, meaning it could be a while before the issue is worked out and Corey releases discovery to anybody.
So what option does a member of the public have, who wants to review the evidence Corey won't release under grounds several lawyers say is not allowed by law?
Sue the special prosecutor, one lawyer said, but be prepared for an expensive and argumentative fight for your right to know.