Based on his appearance at today’s preliminary hearings for his murder trial, George Zimmerman has packed on a few pounds since he was arrested and charged with second degree murder in the death of Trayvon Martin. Might this be an intentional strategy dictated by his lawyer? If so, it would be reminiscent of the memorable episode of “The Simpsons” in which Homer decided to give himself the benefit of the Americans With Disabilities Act by eating himself into muu-muus. But would it be ethical?
The theory, I presume, is that the less threatening and mobile Zimmerman looks, the more plausible it will seem to the jury that he was not the aggressor in his fatal tussle with Martin, who, we heard today, the defense will try to portray as a violence-prone thug. This kind of maneuver exploits a structural defect in the jury system, aggravated by the now ridiculously extended justice process. Jurors can only think of a defendant and sometimes a victim as they look in the courtroom, when it is what they were like when the alleged crime occurred that matters. Years ago in the District of Columbia, a wily attorney defending a child molester who swore that his 13-year old victim had credibly presented herself as 18 managed to delay the trial for three years. It was enough time for the victim to get morphed by puberty hard, and she appeared on the stand not as the thin, immature child she was when she was sexually assaulted, but as an obviously sexually-mature young woman speaking in a attractively husky voice, whom one courtroom reporter described as looking at least 25. Her attacker was acquitted. This is considered excellent lawyering. (The prosecutor, who allowed the girl to wear a tight, low-cut dress and full make-up, was, in contrast, an idiot.)
Looking at Zimmerman today, I wondered why his attorney didn’t also have him wear wire-rim glasses. As I’ve written about before, that also helps: juries are less likely to convict those accused of violent crimes when they look like they could be characters on “Big Bang Theory.” Yet the consensus in the legal profession is that if a lawyer thinks altering his or her client’s appearance will help get an acquittal, it is not only ethical to do it, it is unethical not to do it. The reasoning is that juries are going to place disproportionate weight on irrelevancies like appearances and demeanor no matter how illogical it is—“She just doesn’t look like a child molester”…is there any doubt that Kaitlyn Hunt is counting on that thought coursing through her jury’s heads?—so the defense’s choice is to either have bias working for it or against it. I agree with this, but I don’t like it.
Some will say that Zimmerman’s lawyers are justified in stretching the boundaries of ethics in their defense, because Zimmerman shouldn’t be on trial anyway. Famed law professor and criminal defense lawyer Alan Dershowitz, a critic of the prosecution from the beginning, recently wrote that the evidence now clearly supported Zimmerman’s self-defense claim, and suggested that only political considerations stood in the way of releasing Zimmerman. I think he’s probably correct, but even if he is, an unjust prosecution doesn’t give the defense more margin to use unethical tactics. Deciding to fatten up Zimmerman for his trial would be just as ethical for his lawyer if Zimmerman was hunting down Martin out of racial hatred as it would be if Zimmerman were innocent. The lawyer’s duty is to put on the most vigorous defense permitted by the law, and the Homer Simpson strategy is a legitimate and ethical option.