Social Media: The “New” Courthouse?

Let’s forget, for a moment, the magical marketing benefits of social media and talk about law and order. Prosecutors and defense attorneys are right now, as you’re reading this post, initiating, hosting, or contributing to social Web conversations with ordinary citizens (all potential jurors, I’d add). These officers of the court are, today, boldly intimidating criminals, rallying citizens, and managing trial publicity via social media.

Critics fear that the attorneys who spawn such conversations will ultimately compromise the U.S. legal system. Fans applaud them for their transparency; and for the access to information that was formerly unavailable to them.

It probably can’t be reversed. It’s hard to stop the arc of history. Humans seek connection and social media has become a voice of choice. In the realm of law and order, these are their stories…

The Prosecution.

 “I know I’m getting to this party 5 years late but Hello Twitterverse! #JMJ” (March 2011.) JenniferJoyceCA  | Jennifer M. Joyce, St. Louis Circuit Attorney.

“Tip of the day: if you are wearing an ankle monitor, don’t commit an armed robbery.” JenniferJoyceCA

For the past 22 months, JenniferJoyceCA’s tweets have been threatening criminals and rallying citizens on Twitter and Facebook. The (St. Louis) Circuit Attorney’s Office Facebook Page, “created” in 1828—the year when the city of St. Louis opened its first courthouse—is tarring and feathering criminals in the public square; ushering in a new era rife with viral potential. Stories of convicted criminals, crime victims, and enthusiastic encouragement for citizen action fill the Page’s timeline and invite “friends” to share and comment.

“Bad guys take heed: Lafayette Park folks WILL catch you & they WILL go to court to get your bond raised. Saw this today!”

Ethical? Of course. A December 1, 2012 post explains:

“[a]n acquittal results in a closed record. It would be inappropriate for me to generate public discussion about a closed record. I regularly tweet about guilty verdicts, even if it’s not for the crime originally charged. I highlight staff members on a regular basis, as there are many people in the office and the courts who are excellent public servants. We are very careful about every social media post, and review all content from a legal and ethical standpoint.”

As of December 8, 2012, 1,029 people Liked the Circuit Attorney’s Office Facebook page, and @JenniferJoyceCA sent 2,610 Tweets to 1,816 followers. Rather small “social media gatherings” in the big scheme of things, but enough to get the attention of the national media. A December 2, 2012 article in the St. Louis Post Dispatch, titled “Tweeting the Law”  had this to say:

“[t]he St. Louis prosecutor — who until then preferred sticking to the confines of the courthouse — developed a loud and unabashed presence on the social networking site.”

Not just an aberration, Charles Hynes, district attorney from Brooklyn, N.Y., and Craig Watkins of Dallas use their Twitter accounts for news releases that just a few years ago would have been faxed to traditional media wire services. And then there is Ray Larson, district attorney in Lexington, Kentucky, or, “RayTheDA” as he is known on Twitter.

Good citizen involvement. We can’t successfully fight crime without citizens getting involved. @raytheda

Sporting a Superman-like avatar @raytheda exposes criminals with flair in his Twitter comment stream,

@RaytheDA Attempted robbery and car-jacking by 2 hoodlums.

and elaborates on his not too reverent website, which features a magazine style layout complete with (cheesy) non-commercial ads and video clips. Go on, I know you’re curious, “click here.”

Helping? Hurting? Neutral? From my view as a social media content specialist, it’s impossible to put the genie back into the bottle. We cannot beat up on the medium. We must focus on our messages and take responsibility. These social media prosecutors are trying to make a difference using the contemporary tools available, and that is not a bad thing if it is handled with care.

The Defense “Stands their Ground.”

Nearly a year ago, a young man, sighted by a community appointed neighborhood watch coordinator, was thought to be “suspiciously” walking through the gated community in the rain. After an indeterminate event, the suspect was shot dead. In the shooting of Trayvon Martin, George Zimmerman, the watchman, was charged with 2nd degree murder. Bearing racial overtones, credited to some lousy mainstream media reporting (NBC), the case received wide national and international attention. On April 11, 2012, attorney Mark M. O’Mara* announced that he would be defending Zimmerman under the Florida “Stand Your Ground” law—self defense.

According to O’Mara, within hours of the announcement his offices were inundated by “an enormity of interest” with hundreds of emails and phone calls. What he did next is one for the records. He shut down Zimmerman’s personal social media accounts, (Good move; except for the fact that they are still discoverable. Sigh.) and launched a public campaign on Facebook—in his mind it was the logical solution for handling the high volume of interest in an efficient manner, claiming that he wanted “to provide a voice for Mr. Zimmerman.”

Well, there’s nothing unusual about an attorney taking over the microphone in a high profile case, but, in establishing the Facebook Page O’Mara admittedly did not anticipate the volume of conversation, nor how the public comments would overwhelm their case, as they become part of the record.

A published goal of the Facebook Page was to discourage speculation. However, the O’Mara legal team quickly learned that every post made on Facebook becomes an open thread where anyone on the site can comment. This fact alone enabled third parties to make extrajudicial comments—a violation of the Florida Bar rule on trial publicity. During an interview with a reporter at the McClatchy news agency, I pointed this out. My comments were subsequently published in several regional newspapers and online prior to O’Mara deactivating the Page and issuing this statement:

“[c]omments inevitably lead to conversations about evidence and speculation about guilt or innocence. This type of conversation is a natural part of discourse, and there are plenty of places on the Internet where it is appropriate for this to happen, but it need not happen on a page hosted by the defense.

“[w]ith comments active, each thread becomes a discussion forum. While we are not responsible for the comments people leave on our page, because we have the ability to delete comments, what we choose not to delete reflects on the defense team. Since we can ban users from posting on the page, who we choose not to ban reflects on the defense team. Admittedly, it does not always reflect well, and that is a concern for the defense.”

The toned down Zimmerman defense team continues their social media campaign on their Twitter account, blog, and defense fund website. The campaign aims to discredit and eliminate fraudulent websites and social profiles, dispute misinformation, discourage speculations, acknowledge the larger significance of the case, provide a voice for Mr. Zimmerman, raise funds, and provide a forum for communication with the law firm that is “less disruptive to the firm’s practice outside of the Zimmerman case.” All legitimate goals and uses of social media—albeit with some reservations.

Further, they stated what they would not be doing—comment on the character of Martin, his family or his supporters, or use their online presence to disseminate or comment on any evidence regarding the case.

Then, on June 18, 2012, they posted this announcement:

“[w]e began posting public documents associated with the case. We feel that providing these documents directly on our website allows interested parties to access the information without the filter of the media and thereby serves the purpose of off-set[ing] any potential misinformation surrounding the documents. Moving forward, we will use our online presence to post public records, pleadings, and reciprocal discovery that is relevant to the case.”

Live and learn…

The Courtroom.

What remains is in the courtroom of public and professional opinion. On one hand, some say that to ignore social media for law and order is short sighted. I agree. There are rules in place that govern the message—The ABA Professional Rules and Model Code, as well as several state bars, address the attendant ethical duties.

For the prosecutors, as Joyce illustrates, they are very aware of the ethical boundaries attached to their office. If an attorney abides by them, then go for it. Who doesn’t want to intimidate criminals and have transparent access to information?

For the defense, how far is too far before your message interferes with professional duty? The lessons learned by the Zimmerman defense team suggest that almost everything about social media other than simply posting court documents has a potential backlash.

For the accused, the sheer reach of social media can taint a very large pool of prospective jurors and compromise a fair trial. Even in the case of a prosecutor publicizing their sins, any subsequent charges against them would almost surely be impacted by that dialogue.

I’m not suggesting that voices be muted—thankful for the liberty of free speech provided by the U.S. Constitution. But, I can’t deny that where once there was only the local newspaper, three evening newscasts, and the nosy neighbor, there are now hundreds  of thousands of citizen journalists, including the lawyers that prosecute and defend the accused, bringing certain questionable conversations to a boil. Therefore, do we just put our faith into the hands of fine, ethical and responsible legal professionals and hope the mistakes made while blazing the trail are not too severe? Or, what do you suggest?

Further opinion about the implications of social media in the defense of Zimmerman can be found here.

*In addition to his criminal defense practice, O’Mara is the President of the Seminole County Bar Association and serves on both Circuit and Federal Grievance Committees. He also serves as the legal analyst for Central Florida’s WKMG Channel 6.

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