I wrote about some of this for NPR last year, particularly the fact that the prosecution is at a disadvantage without a gag order placed on the attorneys:
Prosecutors are free to monitor such public [media] forums, but they are prohibited from participating in the discussions. But the defense can fully participate, analyze the prevailing opinions, and build their strategy accordingly …
“All the social media could make jury selection for the prosecution really problematic because you don’t know what information [jurors] have had access to,” says Barry Krisher, a retired prosecutor who served 16 years as the state’s attorney for Palm Beach County, Fla. “My concern is, do they have a version of the facts in their mind that I have to counteract before I even put my case on?”
The judge on Tuesday denied a fourth request by the prosecution for a gag order but restricted the defense from bringing up at trial Trayvon’s prior marijuana use and other information.
Thing is, the judge may be too late to protect jurors from prejudice, because team Zimmerman posted loads of damaging information about Trayvon online a week ago. The documents feature text messages and photos from Trayvon’s cellphone, including messages he sent in which he bragged about fights and smoking marijuana.
And the ruling isn’t final: The defense will get to argue at trial that these facts are relevant, which means jurors could still hear evidence that Trayvon had a history of violence and trouble at school and may have been under the influence of marijuana during the confrontation.
Meanwhile, the defense can test its approach against a year’s worth of social media chatter. For instance, tweets raising questions or strong opinions about certain evidence can prepare attorneys for what to expect from a jury, helping them to hone their legal argument.
It’s a powerful resource, as Florida jury consultant Amy Singer told me for NPR:
Singer analyzed some 40,000 tweets for the defense team of Casey Anthony, who was found not guilty last year in the death of her young daughter … If prosecutors had applied the same scrutiny to social media users following the case, Singer says, they could have “sharpened their focus and better explained in court those things that were important to people [online].”
Corey Dade, an award-winning journalist based in Washington, D.C., is a former national correspondent at NPR and political reporter at the Wall Street Journal, the Boston Globe and other news organizations. Follow him on Twitter.