Identifying witnesses in Trayvon Martin case could lead to legal dispute

May 25 2012 - 6:08am

ORLANDO, Fla. -- If George Zimmerman goes to trial in the shooting of Trayvon Martin, a jury will be asked to determine whether the teen's death was a result of self-defense or murder. Anyone who saw or heard part of the deadly conflict could prove vital as jurors seek to piece together who was responsible.

But attorneys on both sides of the case have said they're concerned about what could happen if important civilian witnesses are identified publicly before trial. When a large portion of the evidence in the case was released last week, 22 witnesses were identified only by number.

That includes a South Florida girl who says she was on the phone with Trayvon in the moments before his death and a man who says he saw the teenager on top of Zimmerman as they struggled on the ground.

Media companies are expected to intervene, seeking to force the state to release the names, in what boils down to a struggle between the public's right to know and the defendant's right to a fair trial.

Ultimately, it will be up to Judge Kenneth Lester to decide what the public should see. On June 1, Lester will hear arguments on a motion to seal witness information and other evidence.

"The judge here is placed between a rock and a hard place," said Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida. "Especially in a case that has been politicized so heavily."

At a hearing in April, both the state and defense told Lester they'd prefer to keep witnesses' information a secret. The publicity of the case, they said, could intimidate the witnesses and prompt them to stop cooperating.

The prosecution filed a motion seeking to seal that and other information Wednesday. But Special Prosecutor Angela Corey's office redacted the information from the evidence released last week anyway, citing state statute.

John D. Kaney Jr., a Daytona Beach First Amendment lawyer and general counsel of the nonprofit First Amendment Foundation, said Corey likely overstepped by redacting the witness information without the judge's direction.

"I don't know of any situation where a prosecutor made the unilateral decision to keep any part of the records secret, closed, after the exemption for investigation has expired, which this one has," Kaney said. "She has to do that in a motion to the court. She can't just do that on her own call."

Corey, he said, should have to convince Lester that releasing the names would cause a serious threat to Zimmerman's right to a fair trial or would put the witnesses in danger.

Criminal justice proceedings are presumed public, but this is no ordinary case. It has inspired vitriol, protests, rallies and even threats -- against Zimmerman, his defense team and Sanford's police chief.

"There is a legitimate (public) interest in knowing who these witnesses are ... because we want to assess their credibility," Calvert said. However, the danger to some witnesses is also legitimate, he said.

"I would argue that in some ways, given the threats that have already been made ...," he said, "... it is probably best that these names and identifying information be redacted, as they now are."

As Casey Anthony prepared for trial in the death of her daughter, her defense lawyers asked Judge Belvin Perry Jr. to seal the names of several witnesses who were expected to testify before sentencing, if she were convicted.

Perry ruled the names should remain public, noting that sealing the information would only delay the inevitable. If called to the stand, he said, a witness "will testify in an open courtroom and be publicly identified with this case."

Witness names weren't the only thing kept out of the Zimmerman evidence released last week. Corey withheld the defendant's statements to authorities as well as phone and medical records, citing various exemptions.

The evidence release brought renewed focus to Florida's rules governing discovery, which is the process by which the prosecution and defense exchange evidence. In the Sunshine State, once evidence changes hands, it becomes public.

Some argue that, in high-profile cases in particular, the public release of evidence is damaging to the process.

Corey herself addressed the issue at a recent civic forum in Jacksonville, calling for the state Legislature to "tamp down" on public-record laws, according to a First Coast News report.

"The public's right to know should never trump the state's right to a fair trial or equally the defendant's right to a fair trial," she said. Asked what she would change, Corey said "nothing should be public until the trial comes."

Two prominent figures in the Anthony case -- prosecutor Jeff Ashton and defense attorney Cheney Mason -- have since criticized the public release of evidence. At a recent meeting of Florida's Innocence Commission, Mason asked the blue-ribbon panel to lobby the Legislature to bar the release of state evidence in criminal cases.

The pretrial release of evidence, Mason said, "in legal terms is B.S. It shouldn't happen."

Thousands of pages of documents, videos and recordings were released in the leadup to Anthony's murder trial in the death of her 2-year-old daughter, Caylee Marie. Did they impact the verdict?

"Casey Anthony was acquitted," Calvert noted, "so it's hard to say she didn't get a fair trial."

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(c)2012 The Orlando Sentinel (Orlando, Fla.)

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