The cross-linking of trials and the Internet has been a topic of growing concern for some time. Not until now, though, have we seen a defense attorney in an upcoming case rev up social media conversations by being the first to speak. In what appears to be an unprecedented move, Mark O’Mara, attorney for George Zimmerman, the Florida Neighborhood Watch volunteer accused in the death of 17 year old Trayvon Martin, has begun to post his opinions. Surely, he intends to lure others into responding and revealing their thoughts on his case.
On the blog, GZLegalCase.com, O’Mara noted that it is “unusual” to “maintain a social media presence on behalf of a defendant.” He continued, however: “First, we contend that social media in this day and age cannot be ignored. We feel it would be irresponsible to ignore the robust online conversation, and we feel equally as strong about establishing a professional, responsible and ethical approach to new media.”
Amy Singer, a Gainesville-based trial consultant who analyzed 40,000 tweets for Casey Anthony’s defense team, opined: “This is a brilliant move on his part.” Seminole Circuit Judge Kenneth Lester demurred when pressed by the prosecutor, Assistant State Attorney Bernie de la Rionda to issue a gag order preventing Mr. O’Mara from talking about the facts or the evidence or giving opinions in the media.
With regard to pre-trial activity, where should we draw the line? Pre-trial researchers who conduct surveys in order to learn more about the public’s likely reactions to case themes and facts are, like O’Mara, inviting public reactions to the specific case at hand. How, then, is O’Mara’s foray into the social media different? Is it truly different?
In my view, O’Mara’s blogging is different from pre-trial research conducted by trial consultants because of O’Mara’s explicit role, the remarkable reach of social media (to tens of thousands of people) and the ongoingness of the conversations. As the lead defense attorney, his influence in the trial process is unique and as he speaks for his client via social media in advance of trial, he risks poisoning venire members. It is irresponsible of O’Mara to be the first to speak or to be a participant in the social media conversations. So many of these people may become part of the jury panel that O’Mara risks undermining our jury system. Listening in is one thing. Having the trial attorney start up or step into online conversations risks pre-empting and unduly influencing the conversation in the courtroom and so risks the defendant’s and the government’s access to the justice that resides there.
Lest you imagine that venires are somehow safe from being undermined by lawyers’ eagerness to hear from local residents before trial, consider the fact that in the Eastern District of Texas in Marshall, Judge T. John Ward has required any attorney who conducts pre-trial research to disclose the names of the research participants. Judge Ward did this because the venue is small, patent litigation in particular is soaring, and too many prospective jurors were rendered ineligible for service because they had already “served” as mock jurors. Judge Ward’s order effectively ended pre-trial research in Marshall. And, while pre-trial researchers have bemoaned this decision, there is much to be said for the importance of preserving the sanctity of the courtroom. It behooves trial attorneys especially to take care not to poison our panels and not to try their cases on the Internet in advance of or during trials.