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Late April 2012, Mark O’Mara launched an unprecedented social media campaign to defend his client, George Zimmerman, in the court of public opinion.  Zimmerman, 28, faces a second-degree murder charge in the shooting death of 17-year-old Trayvon Martin.  He has pleaded not guilty and claims self-defense.  The social media firestorm surrounding this case, however, began raging before Zimmerman’s arrest.

An online petition, launched by Martin’s parents, calling for Florida’s 4th District State’s Attorney to investigate and prosecute Zimmerman launched the case into the national spotlight.  The petition became the fastest-growing petition in Change.org history.  Twitter users, including prominent NBA players, adopted hooded avatars and used #hoodie related hashtags as a sign of solidarity with Martin.  Rep. Bobby Rush (D-IL) was escorted off the House floor for wearing a hoodie in support of Martin’s cause.  California attorney and legal ethicist John Steele further perceives that cable television coverage of the case is slanted against Zimmerman.

O’Mara launched a website, Facebook page, and Twitter account devoted to discrediting fake websites and social profiles claiming to be Zimmerman, disputing misinformation, and discouraging speculation.  In his introductory blog post, O’Mara wrote that “social media in this day and age cannot be ignored.  It is now a critical part of presidential politics, it has been part of revolutions in the Middle East, and it is going to be an unavoidable part of high-profile legal cases, just as traditional media has been and continues to be.”

O’Mara has indicated that social media will be his tool for responding quickly and efficiently to “misinformation” about his client and the case.  St. Louis attorney Michael Downey, who has written extensively on ethics issues, states that it is “a legitimate role of a lawyer [to protect his] client’s reputation in the public eye.”  Marcus Messner, assistant professor at Virginia Commonwealth University’s School of Mass Communications and an expert on social media, feels that although O’Mara’s social media presence may be belated in comparison to that generated by the Martin family, it is still a smart one.  “In many people’s views, George Zimmerman is guilty, even without a trial.  This of course has to do with the circumstances of this case, but also with his side’s communication strategy so far.  Messner notes that “[i]t’s a common practice for lawyers to make public statements in defense of their clients.  Moving them now to social media is a sign of the times.  It allows the legal team to present its views without media filters.”

This brand of direct-to-the-public legal marketing is not without risks.  The American Bar Association Model Rules of Professional Conduct proscribe certain forms of advertising by attorneys for their legal services.  O’Mara’s online activity on behalf of his client may be viewed as an attempt to promote his practice.  If considered advertising, it would be difficult to make the “ads” comply with the ethics rules.  Furthermore, O’Mara’s media blitz may seem opportunistic in the eyes of the public.  O’Mara recognizes this criticism and states that “if the controversy surrounding this matter subsided tomorrow, so would our efforts to address the perceived problems the way we feel is necessary.”

Lawyers are further prohibited from making public statements that could compromise a fair trial.  O’Mara, however, made clear on the website that the defense team “cannot and will not comment about the facts of the case, as that is the purpose of the courts and legal process.”  He argues that part of his presence online “is to discourage public speculation about the facts of the case”—that the defense team is in a position to distinguish fact “from the rest.”  But isn’t that the ambit of judge or jury?  On the other hand, one could argue that, with so much publicity surrounding the case already, what could O’Mara say at this point that would taint the jury pool any more than it has been tainted?  Justice Anthony Kennedy opined, in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), “[e]mperical research suggests that in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it and base their verdict upon the evidence presented in court.”

Ultimately, whether O’Mara’s media blitz will compromise Zimmerman’s right to a fair trial or unduly taint the jury pool will be left to the judge to decide.  Seminole County Circuit Judge Kenneth Lester Jr. issued a written order on April 30, 2012, which stated that there is no need for a gag order on O’Mara, but warned that one could be imposed if attorneys in the case say or write anything prejudicial.

Despite the effect of the seemingly endless stream of social media on the court of public opinion, it is important to keep in mind that the ultimate ruling on this case should – and will – occur in a court of law.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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