I was disappointed, but not surprised by Judge Nelson’s decision denying the State’s motion for a gag order.
Instead of considering the possibility that Judge Nelson might or might not grant the gag order, I spent the weekend, plus Monday and Tuesday, thinking about the possibility that the defense is attempting to rig the outcome of the Zimmerman case with its aggressive effort to try the case in the court of public opinion. For reasons that follow, I worry that Judge Nelson and the prosecution may have underestimated the potential for abuse represented by the defense effort to win its case in the court of public opinion.
In this article, I propose a theory or possible explanation for the unusual defense effort to aggressively present the Zimmerman defense in the court of public opinion without fear that the prosecution will respond and participate in a meaningful adversarial manner. For example, the theory I provide would permit the defense to claim that Zimmerman acted in self-defense and rely on his inadmissible hearsay statements instead of calling him as a witness and subjecting him to cross examination.
The defense also could solve the serious problems presented by forensic evidence that refutes or is inconsistent with Zimmerman’s hearsay statements by simply ignoring them without fear that the prosecution would do anything.
The defense is not likely to request or agree to a change of venue and the prosecution probably does not have a right to a change of venue.
I believe the defense has been pursuing and will continue to pursue a strategy designed to try its case in the court of public opinion, rather than the courtroom.
The strategy serves three important functions by
(1) keeping the case in the news;
(2) anchoring the defense theory of the case in people’s minds via repetition; and
(3) weighing the importance of the evidence in relation to whether it supports the defense theory of the case.
Meanwhile, defense control of the message generally goes unchallenged because the prosecution rarely comments.
Nevertheless, the prosecution’s silence probably has not damaged its case in any significant manner because Zimmerman’s statements to police are in conflict with the physical and forensic evidence and inconsistent with each other. Also, who will ever forget Zimmerman’s appearance on the Sean Hannity Show when he denied feeling any responsibility or regret for killing Trayvon Martin because his death was due to God’s Plan.
Given Zimmerman’s ongoing and potentially catastrophic damage to his case, I have been struggling to figure out why the defense has been so determined to try its case in the court of public opinion. That is an extremely unusual strategy for the defense to use in any criminal case. Imagine how different the case would appear to be, if only Zimmerman had asserted his Fifth Amendment right to remain silent.
Let us assume for the sake of argument, that the defense had a legitimate reason to try the case in the court of public opinion. What might it have been?
I suspect they may have assessed Zimmerman’s chances of winning the immunity hearing or the trial as unlikely, given the physical and forensic evidence as well as as his inconsistent and conflicting statements.
If that were true, I can visualize them concluding that Zimmerman’s best chance to win, given the percentages of prospective jurors in Seminole County who are going to be White, conservative or racist, would be to try to win the case in the Seminole County court of public opinion in hopes of seating at least one or two and possibly all six seats on the jury with people who fit into those categories.
Even if they were to succeed in seating only one such person, that juror might vote “Not Guilty,” regardless of the strength of the evidence against Zimmerman.
If that were to happen, that would be an example of juror nullification based on racial prejudice.
For these reasons. I am recommending that we consider and discuss the following theory.
The defense strategy is to aggressively try the case in the court of public opinion in Seminole County in order to maximize public support for Zimmerman among White radical-right-wing conservatives, in hopes of seating at least one and possibly more of them on the jury.