TRIAL PRACTICE
Representing a Celebrity Criminal Defendant

By Hal Haddon

Vet all website postings to avoid damaging overstatements that cannot be proven in court.

When a lawyer accepts a “celebrity” criminal case, descent to the bottom of the Looking Glass is sudden and steep. All the usual participants in the criminal justice process—prosecutors, police, judges, defense lawyers, and witnesses—are dazzled and not infrequently blinded by the media glare. The defendant may be a celebrity in his own right, such as my clients Hunter Thompson and Kobe Bryant. Or the glare may focus on previously anonymous citizens, such as my clients John and Patsy Ramsey, who suffered unwanted celebrity by virtue of the media’s insatiable search for a sensational case.

However flattering requests for interviews may be, it is almost always a mistake for a criminal defense lawyer to grant one while the case is pending, especially on the front end of a case before the facts are fully known. A lawyer’s ill-informed statements can be used as admissions against the client, in both the court of law and the court of public opinion. It is almost impossible to answer pointed media questions without revealing client confidences. And motions for change of venue receive a chilly judicial reception if the movant’s lawyer has been an active player in the media game. Frequent television appearances diminish a lawyer’s credibility with the judge and the jury.

Some lawyers attempt to trade information with the tabloids or direct them to witnesses who won’t speak unless paid. Dancing with the tabloids is snake handling at its riskiest, and even the most skillful will be bitten.

Personal and law office security is an omnipresent consideration in high-profile cases. Staff fears must be addressed. Local police security specialists have come to our offices on several occasions to train our staff on security measures. We occasionally hire private security personnel to guard our offices.

If security measures fail, there are other remedies against tabloid excesses. The Ramseys successfully sued irresponsible tabloids and their “echoes” in the supposedly mainstream media for false articles suggesting that their young son was the murderer. The Ramsey saga spawned criminal prosecutions of a private investigator who obtained telephone and credit records through pretext and a public employee who sold confidential autopsy records to the tabloids. Lawyers who facilitate illegal tabloid tactics are also subject to prosecution and professional discipline.

Prosecutors and police are subjected to unique public pressure to bag the biggies, and far too often they resort to unprincipled tactics justified by the amoral nostrum that the end justifies the means. In the Ramsey investigation, police and some of the prosecutors convinced themselves that one of the parents must have been the perpetrator. Outrageous falsehoods were leaked to the media by authorities in an effort to break the Ramseys and force their prosecution. Compelling evidence of the Ramseys’ innocence was, by contrast, kept under wraps by the authorities.

Celebrity “experts” are a fixture in high-profile criminal cases. I learned an invaluable lesson about media-afflicted experts early in the Ramsey case: Shortly after hiring a respected DNA expert, I was astounded to see him being interviewed on national television about the case. When we protested, the expert shamelessly reminded us that, despite the retainer, he had not been asked to sign a confidentiality agreement or told not to talk to the media. It is now our standard policy in all criminal cases, high profile and low, to require all experts and investigators to sign a written confidentiality agreement prohibiting them from speaking or writing about the case without permission. The agreements include provisions for injunctive relief, copyright assignments, and forfeiture of all publication profits.

Lay witnesses are also vulnerable to unique pressures on a celebrity case. A person who is “witness quality” is a highly solicited press commodity. Once the instant flattery and celebrity subside, however, many almost-famous witnesses become withdrawn and decline to grant defense interviews. This places a high premium on rapid, front-end defense interviews of potential witnesses within hours or days of the event, which is always difficult because the authorities have command of the facts and seldom share them with the defense until compelled by rules of discovery. When a witness refuses a defense interview, I frequently send a letter pointing out the unfairness of declining to share the facts with both sides. This occasionally prompts a witness to reconsider, and the letter can later be used as an impeachment exhibit to demon-strate bias. Whenever a witness grants a televised or recorded media interview, it is essential to preserve it for potential impeachment. Also, far too many witnesses in celebrity cases want to be paid for an interview or for testimony—and, of course, criminal defendants and their lawyers can be prosecuted for bribery and witness tampering should they acquiesce.

Every celebrity case generates thousands of calls to your office switchboard offering theories and information, often seeking a reward. The receptionist must be trained to treat the caller with respect and attempt to persuade the caller to leave contact information and a voice mail that can be used for evaluation and follow-up. We have an investigator promptly return all calls that offer leads, and some have turned out to be very useful.

Websites are becoming a fixture in high-profile cases. Law enforcement authorities and defense lawyers alike use websites to keep the public informed of upcoming events and to solicit potential evidence. These sites need to be monitored to keep track of public opinion, potential leads to witnesses or perpetrators, and insights into the opponent’s strategy. If a website is used, the legal team needs to vet all postings to avoid damaging overstatements that cannot be proven in court.

Some courts impose bright-line gag orders early in the process, immediately after charges are filed. Gag orders usually allow a limited right of response to unprovoked adverse publicity. There are broad enforcement possibilities if a gag order is violated. Beyond contempt investigations, prospective witnesses are subject to testimonial impeachment if they can be shown to have violated a gag order. Preclusion of witness testimony for blatant violation is also a viable sanction.

The media litigate access to all stages of the pretrial and trial proceedings. Judicial standards for litigating media access demands vary. In a series of 1980s decisions, the U.S. Supreme Court directed trial courts to first determine whether a particular hearing for trial state is “historically open to the public.” If the answer is yes, there is a “qualified right of public access” to that proceeding. A defendant or prosecutor who wishes to close that proceeding to the public must then make a showing that there is a constitutional or statutory justification for closing that portion of the case. The standard a defendant must meet is to show that there is a “substantial probability that the defendant’s right to a fair trial would be prejudiced” by allowing press access. Litigation over media attempts to place audio equipment and television and still cameras in the courtroom is now standard fare in high-profile cases. There is little constitutional jurisprudence on the subject, and the media do not typically claim a constitutional right to cameras in the courtroom. Media attendance during voir dire is a hotly litigated subject.

Despite all the hoopla attending a celebrity criminal trial, jurors have almost universally given conscientious attention to their charge, which is to fairly judge guilt or innocence. Jurors take their charge very seriously, and the legal profession is well advised to follow their example, especially because it is the jurors whom we seek to persuade.

For More Information About the Litigation Section

- This article is an abridged and edited version of one that originally appeared on page 19 of Litigation, Summer 2007 (33:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/litigation.

- Periodicals: Litigation, quarterly journal; Litigation News, bimonthly newsletter; Litigation Update, monthly e-mail newsletter; committee newsletters (all Section members may join three committees at no additional cost).

- Books and Other Recent Publications: The Attorney-Client Privilege and the Work-Product Doctrine, 5th ed.; Internal Corporate Investigations, 3d ed.; Law Makers, Law Breakers and Uncommon Trials; Raise the Bar: Real World Solutions for a Troubled Profession; The Curmudgeon’s Guide to Practicing Law; The Litigation Manual: First Supplement; The Litigation Manual: Depositions; Model Jury Instructions: Employment Litigation, 2d ed.; The Trial Lawyer: What It Takes to Win, DVD/book package; Motion Practice and Persuasion; McElhaney’s Trial Notebook, 4th ed .; Business Torts Litigation, 2d ed.; Discovery Problems and Their Solutions; Electronic Evidence: Law and Practice; Model Jury Instructions: Patent Litigation; Questions from the Bench; Effective Appellate Advocacy; Examining Witnesses, 2d ed.; Model Witness Examinations, 2d ed.

Hal Haddon practices with Haddon, Morgan, Mueller, Jordan, Mackey & Foreman P.C. in Denver, Colorado. He may be reached at .

Copyright 2008

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