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Zimmerman Trial Final Jury Wrap-Up: Insights on Trial Strategy

Zimmerman Trial Final Jury Wrap-Up: Insights on Trial Strategy

The final jury was selected the Zimmerman trial today, consisting of 6 women jurors and 4 alternate jurors.  For those following along with the juror ID numbers, the jurors selected are:  B29, B76, B37, B51, E6, E40.

Tomorrow we will have an in-depth analysis for each of these selected jurors based on our extensive notes taken from the first day of limited voir dire through the end of selection today.  In the meantime, here are some observations comparing and contrasting the approaches of de la Rionda for the State and O’Mara for the defense in these last two days of full voir dire and final selection of jurors, providing perhaps some insights into what we can expect from each of them in terms of trial strategy.

Some Thoughts

First some overall thoughts.  There are four goals that you can attempt to accomplish in voir dire, and if you’re good you can accomplish all of them.  They are:

  1. Develop a positive relationship with the jury (this is potentially important because it’s difficult to prevent your personal views of a person from coloring what they  show you.)
  2. Frame how the jury thinks of the legal process and place some of the words they might hear in trial and read in the jury instructions in a context that’s positive to your side.
  3. Find potential jurors that are predisposed against the “guilty” or “not guilty” verdict you would prefer. You can use this knowledge to more accurately use your peremptive strikes. (Here, each side had 10 peremptive strikes).
  4. Get the jurors to feel comfortable enough to talk openly about topics that expose predisposition against you, or against a relevant law.  If they do you can get them dismissed for cause, reserving your peremptive strikes for others.

Let’s compare and contrast how Mr. de la Rionda did on each of these yesterday with how Mr. O’Mara’s did with them today.

Developing a Positive Relationship with Prospective Jurors

de la Rionda:   A solid job.  By the end of the day de la Rionda was laughing and joking with the jurors, and while I didn’t get to see body language (for obvious reasons), the jury seemed to become quite comfortable with him.  This is not to say he did an A+ job here. His considerable loquatiousness made the “conversation” between himself and the jury too one-sided. When possible you should let them speak enough that they feel like you’re chatting together rather than being given a presentation. Podiums are not as effective as dinner tables for relationship building.

Mr. O’Mara:  Home run. Over the course of O’Mara’s discussion with the prospective jurors one of them effusively thanked him, saying she really appreciated “what he was doing for them,” in explaining and framing the legal issues and process.  Even better, he physically touched Mr. Zimmerman both at the beginning and the end of the day, a non-verbal cue that they should impart some of their favorable opinion of O’Mara onto his client.

Framing the Picture

de la Rionda:  Just an OK job.  Despite saying a lot, de la Rionda did just an OK but not great job in getting the jury to think about how various legal terms will be applied to the facts of the case.  He extemporized that a “reasonable doubt” is not “no doubt”, that “presumed innocent” isn’t “can’t be guilty” and, with his biggest stretch, that perhaps you should view Mr. Zimmerman’s actions as “taking the law into your own hands.” He also worked to encourage the jury to take circumstantial evidence as seriously as direct evidence, inferring it was just as valuable, and seemed to imply that no bias of any kind should ever be considered in deliberations.

O’Mara:  Another home run.  O’Mara again did a fantastic job on this point, not just because he went through various jury instructions practically line-by-line, helping to solidify how the jurors can expect to see these instructions and legal terms in the context of the facts of this case, he also very effectively countered many of the approaches Mr. de la Rionda had made yesterday.  For example, he guided the prospective jurors to agree that lawful self-defense is not “taking the law into your own hands” in the usual negative sense of that phrase.  Indeed, O’Mara spent considerable time on the subject of the law of self defense, and absent knowledge of the facts in evidence (which the jurors, obviously, have not yet heard) it could almost have been his closing argument, so clearly did it frame Zimmerman’s absence of guilt.

By the end of the day the jury was volunteering views that “taking the law into your own hands” is not the same as “applying the law” and that self defense, like protecting your child from a car careening toward them, is a legal and proper thing to do.

Regarding the issue of circumstantial evidence raised by de la Rionda the day before, O’Mara helped the prospective jurors formulate the view that circumstantial evidence, on its own, is not proof, especially if there were reasonable non-criminal alternative explanations that were consistent with the circumstantial evidence.

The day before de la Rionda had used as an illustration of circumstantial evidence that a parent finds the cookie jar empty and then sees cookie crumbs in his child’s clothes.  Today the jurors criticized that illustration, saying that there might have been other reasonable explanations for the crumbs, such as a second sneakier child planting the crumbs on their sibling.

O’Mara also managed to cover an enormous number of other topics in only four hours, including explaining that being referred to as the “defendant” does not at all diminish the presumption of innocence, the importance of the presumption of innocence and contrasting the US in this regard with criminal justice in countries that lack this presumption, the differences between “beyond a reasonable doubt” and “by a preponderance of the evidence”, the gravity of the jurors’ task, the acceptability of lawfully carrying a concealed weapon,  keeping sympathy out of the trial, the efficacy of neighborhood watches, the unimportance of race in the case, and more.

…And he never seemed rushed.

Finding their Faults

Getting someone to admit their prejudices at this late stage of jury selection has significant challenges. After all, all 40 people have now repeatedly said they don’t think there’s any reason they shouldn’t be selected. Wouldn’t it be counter to prior “testimony” to now say there was an issue?  Mr. O’Mara and Mr. de la Rionda took two very separate approaches to address this issue.

de la Rionda:  Weak.  Mr. de la Rionda stuck to facts. Saying you have a problem with the 2nd amendment takes a lot more guts than “I don’t own a gun.” and yet there are likely few people who do own guns that don’t like the amendment.  By simply asking the jury if they or someone they know own guns and what their experiences were with guns can lead the prospective jurors to provide answers that could expose prejudices in these areas.  The problem with this approach is that there could be any number of other reasons for a prospective juror to not have a gun, and any single answer provided by a juror in direct response to a different question may not reveal the depth of the jurors’ feelings on the matter..

O’Mara:  A Riskier, Much More Effective, Approach:  Mr. O’Mara took a riskier but potentially more rewarding approach.  He started with the 1st Amendment, putting everyone at ease to safely express their opinion.  He even said that the reason the 1st Amendment is listed first is so no one would question that our forefathers meant us to be able to criticize all the other Amendments.  Taking this tactic provided a means for the conversation to switch to otherwise very sensitive topics, such as the prospective jurors views of the 2nd Amendment. In such a safe environment a substantial number of prospective jurors were comfortable discussing their views on these issues in detail.

Exposing the Prospective Jurors’ Prejudices

del Rionda:  OK job.  When Mr. de la Rionda finished his questions yesterday I left feeling there was two people who exposed themselves to a potential dismissal for cause (E27 and P67). E27 admitted she would struggle to keep a prior victimization out her mind and P67 wrote a letter the night before asking to be dismissed.

O’Mara:  Good job.  On the other hand, O’Mara exposed B7’s belief no one should carry a gun, six jurors who didn’t like stand your ground, and two jurors who had experienced enough violence to be left with lost memories of the events.

Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense” which shows you how to successfully fight the legal battle everyone faces after defending themselves (second edition shipping in June – save 30% and pre-order TODAY!).  Many thanks to the Professor for the invitation to guest-blog on the Zimmerman trial here on Legal Insurrection!


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Thanks for your summary, Andrew. Today, I only had time to review the tweets on LI, but from those, I got the impression that O’Mara got much more out of 4 hours than del Rionda got out of 8. DR’s attempts to strike the 2 white women without being able to articulate a reason when challenged were particularly telling to me and indicated he thought he could not get rid of jurors he thought were not disposed in his favor and was running out of preemptory challenges. I presume that business was conducted outside the presence of the potential jurors.

Professor Jacobson promised exceptional coverage of this trial and wow did you deliver. This is amazing.

Prosecutors in the OJ case likely lost the case in jury selection. I don’t think it can be overstated how important that process is in the ultimate outcome. I am really looking forward to the review of the jurors selected here. Thanks for the extensive coverage of the case thus far. I am getting quite an education.

I served on a jury years and years ago in the county seat of a big east coast city suburb county. I have many memories of the event including the sinking feeling in my gut when we learned what the charge was. What I do not remember at all is knowing as much about the case and charges as apparently these jurors do even before the juty has been selected. Is this a new procedure? It occurred to me yesterday, before you addressed it directly this evening, that there is a great deal of arguing the case before the trial has begun, almost in the manner of opening and closing arguments.

I also remember that the judge, now deceased, did a remarkable job at reinforcing the jury’s faith in our legal system. He was a remarkable man. I could use a good dose of reinforcement now. You, the professor and a few others help greatly, but I fear greatly for our system of laws. A wonderful job. Thank you.

Law enforcement officials at the Seminole County Courthouse had been anticipating scores of protesters supporting either Martin’s family or Zimmerman. But the crowds stayed away on the first day of the trial, with just a little more than a dozen protesters showing up.

I had to go through a jury selection process myself once. I was dismissed from the case, which was a medical malpractice case, simply because my father was a doctor. I was doing my best to answer honestly, because I had never sat on a jury before, and was looking forward to seeing a court in action for once in real life, and not T.V., ah well. It just goes to show that sometimes a pre-emptive strike can be used on the wrong person for the perceived bias that an attorney has regarding his own case.

    Ragspierre in reply to Paul. | June 21, 2013 at 8:17 am

    The word is “peremptive” or more typically “peremptory”.

    1. dictatorial: expecting to be obeyed and unwilling to tolerate disobedience,
    2. expressing urgency: communicating urgency, command, or instruction
    3. closed to further consideration or action: ending, or not open to, discussion, debate, or further action

    Here in Texas, we actually have a few peremptory “motions”…which are not really requests to the court to do anything. They are NOTICES from one of the parties to the court that it WILL do something or other.

Like Mary Sue, I’m very impressed by Andrew Branca’s coverage of the Zimmerman trial here at Legal Insurrection. Thank you for a top notch job.

    Estragon in reply to DRJ. | June 21, 2013 at 2:12 am

    Hear! Hear!

    Mr. Branca’s coverage and analysis thus far is light years beyond anything else I’ve seen on the internet, print media, or television (reports, I haven’t watched any live sessions if they are being broadcast). Kudos and thanks to him and the Professor.

Once again Mr.Branca thank you for your contribution in helping us understand what is taking place with the jury selection.

The comments at HuffPo, re the final jury selection, are evidence that liberalism truly is a mental disease. I believe that they think “jury of one’s peers”, in this case, would be 6 young Black men who consumed Skittles while wearing a hoodie:)