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Criminal Justice Magazine
Spring 2004
Volume 19 Number 1

Ethics

Clients, Lawyers, and the Media

Peter A. Joy and Kevin C. McMunigal

Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.

Media scrutiny of criminal trials is commonplace. Newspapers give extensive attention to criminal trials of celebrities such as Martha Stewart and those, such as Scott Peterson, accused of terrible crimes. And television, through Court TV, provides coverage and commentary on criminal trials of even obscure defendants. The lawyer and the client have limited ability to control such coverage-whether in print media or on television-and it is usually limited to what an observer sitting in the courtroom would see. The Constitution requires public criminal trials, and newspapers and television cameras extend public access to open courtroom proceedings beyond the relatively small number of spectators a typical courtroom holds.

Two recent cases, though, demonstrate that television may be poised to expand the scope and intrusiveness of its coverage of criminal trials raising challenging questions of legal ethics.

Access to the jury room

The State of Texas charged Cedric Harrison with murder and sought capital punishment. Prior to trial, Harrison consented to the PBS documentary series Frontline videotaping the jury deliberations in his case for later broadcast. Though Harrison waived the right to use the video recordings in any later challenge to a conviction, the prosecutor in the case opposed the recording. The trial judge held a hearing and questioned both Harrison and his lawyer about Harrison's decision to consent, then ruled allowing the recording. Jurors were to be screened and only those who consented to the taping were to sit on Harrison's jury.

The prosecutor sought immediate appellate review and a Texas appellate court, in Texas v. Poe, 98 S.W.3d 194 (2003), granted mandamus prohibiting the videotaping, finding that it violated a Texas statute providing that "No person shall be permitted to be with a jury while it is deliberating."

The court ostensibly adopted a textual approach to an interesting exercise in statutory interpretation. The cameras and microphones were to be remotely operated, so no person other than the jurors would have actually been in the jury room. The text of the statute simply did not address recording jury deliberations. Nonetheless, the court found that the plain language of the statute "clearly and indisputably" barred the recording. (Id. at 202.) According to the court, television viewers who would later watch the recordings would be "with the jury while it is deliberating." (Id. at 201.) A more plausible rationale for the result reached by the court is one based on legislative purpose-that the policy behind barring any person from being in the jury room would likewise dictate barring videotaping of the jury.

What should the policy be regarding recording of jury deliberations? There are a number of persuasive arguments on both sides. We insist that criminal trials be public, but then shroud what is arguably the most crucial phase of the trial-the jury deciding the defendant's fate. Why doesn't the ideal that democratic government should be open dictate exposing jury deliberations to public view? Recording and broadcasting jury deliberations could help educate the public, legislators, and legal reformers about how juries operate and help us craft better procedure and evidence rules. It could also reveal and remedy jury misconduct, which in turn would arguably deter misconduct.

But how might such public exposure negatively affect the way jurors function? Jurors who conclude that the government has failed to prove the guilt of an unpopular defendant might nonetheless convict for fear of reprisal. They might also feel inhibited in freely expressing their views or in voting to nullify. Publicity might prompt some jurors to "act" for the cameras to gain notoriety for themselves, as do participants in reality television shows. The publicity resulting from such recording and broadcasting could also discourage potential jurors from serving, shrinking and possibly skewing the jury pool.

The debate about recording criminal jury deliberations has yet to be resolved. Though the Texas court in the Harrison case barred recording, Arizona and Wisconsin have allowed it. The Cleveland Plain Dealer recently reported that the Ohio Supreme Court has approved ABC News recording and televising jury deliberations in a Cleveland criminal trial. How other states will handle the issue remains to be seen.

Interviews with clients and recording defense preparation

A recent Arkansas case, Echols v. Arkansas, 2003 Ark. LEXIS 567 (October 2003), raises another aspect of media coverage beyond the typical courtroom broadcast. Arkansas prosecuted Echols and several codefendants for the gruesome murders of three young boys. The boys were found hog-tied in a drainage ditch. All had been sexually abused and one was severely mutilated. Prior to trial, filmmakers under contract to HBO entered into an agreement with Echols and his two codefendants to interview them and film their trials in return for payments of $7,500 each. The defense lawyers did not receive any payments.

Echols was convicted and sentenced to death. In challenging his conviction, Echols raised an interesting argument that his contract with the filmmakers created a conflict of interest for his trial lawyer that entitled him to a new trial. First, he argued that the lawyer sacrificed time meeting the needs of the filmmakers that should have been spent preparing for trial. Second, he argued that his lawyer chose to use the funds from the HBO contract to pay for investigation and expert witnesses rather than applying to the court for such funding, which might have been more ample. Finally, Harrison argued that in order to accommodate the filmmakers' broadcast date, his lawyer failed to seek a continuance that could have helped the case.

The appellate court rejected each of these arguments because Echols failed to demonstrate an adverse impact on his lawyer's performance. The court also pointed out the advantages Echols received from the HBO agreement. For example, by using his own money rather than court funds for investigation and experts, his lawyer was able to prevent the notification of the prosecution of the defense strategy that inevitably accompanies an application for court funds.

Lawyers entering into media contracts

A lawyer negotiating a personal media deal is not an infrequent occurrence. Marcia Clark entered into a million-dollar contract to write a book about the O.J. Simpson case. One of the defense lawyers in that case, F. Lee Bailey, years before had negotiated a contract to write a book about his representation of Patricia Hearst that gave rise to a claim of conflict of interest.

Such deals can create both constructive and perverse incentives for the lawyers who enter them. A book or television contract might reinforce the lawyer's incentives to be well prepared, diligent, and effective out of concern for reputation and to attract future clients. But the same contract may also threaten a number of ethical obligations. One of the most obvious is confidentiality. The financial incentives arising from such deals may also distort the lawyer's judgment about critical decisions such as acceptance of a guilty plea or choice of defense strategy, both of which might impact public interest in the case and thus its media value.

The ethics of lawyers entering into media deals themselves has been examined on many occasions. Model Rule 1.8(d), the typical legal ethics rule regarding such deals, states: "Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation." Comment 9 to Rule 1.8(d) explains the conflict by noting that "[m]easures suitable in the representation of the client may detract from the publication value of an account of the representation."

In short, lawyers are allowed to enter into a media deal as long as they wait until the representation is over. A moment's reflection reveals that this delay requirement does not insulate a lawyer from the perverse incentives such media deals create. The lawyer's conduct before and during a trial in a high profile case may be distorted simply by the prospect of later entering into a media deal.

Client media deals and lawyer ethics

The Harrison and Echols cases raise an interesting set of ethical questions for lawyers.

Who makes the decision? Rule 1.2 addresses the allocation between client and lawyer of the authority to make decisions concerning the representation. The client has final authority to make decisions concerning the objectives of the representation, while the lawyer has final authority over the means for pursuing those objectives. Rule 1.2 specifically states that what plea to enter, whether to waive jury trial, and whether to testify are questions for the criminal client to resolve.

Are questions such as those faced by Harrison and Echols-whether to have jury deliberations recorded and whether to agree to a recorded interview-ultimately for the client or the lawyer to decide? Do these decisions concern objectives or strategy? In the Harrison and Echols cases, both the lawyers and the courts appear to have assumed that these were client decisions. But are they? One could easily characterize both as questions of strategy. If the client and lawyer disagree on the strategic wisdom of enhanced media scrutiny, is the lawyer ethically allowed to veto a client's decision to agree to recording jury deliberations or granting an interview? Is the lawyer required to do so if the lawyer is convinced the publicity will hurt the client's case?

The lawyer may have little if any practical means of vetoing a client's decision to agree to allow increased media access. This probably depends on the type of media exposure and whether or not the client is in custody. Clearly the lawyer could act to veto the recording of jury deliberations by opposing it in court. By contrast, the lawyer would be hard pressed to keep a client who is not in custody from granting an interview to a television crew.

Competent representation. Model Rule 1.1 requires a lawyer to provide competent representation to a client. How does a lawyer go about deciding whether or not enhanced media scrutiny will help or hurt the client? The lawyer confronts this issue regardless of whether the lawyer or the client makes the ultimate decision. If the decision is ultimately the client's to make, the lawyer nonetheless has to advise the client about which course is preferable. If the decision is ultimately the lawyer's to make, he or she similarly must determine which course is in the client's best interest.

Predicting whether and how enhanced media involvement will affect a client's case is likely to be a challenging and hazardous task. How is the lawyer to know, for example, whether recording jury deliberations will make the jury more or less likely to convict? Is a lawyer able to predict whether a jury pool screened of potential jurors uncomfortable with being taped will be more receptive or more hostile to the lawyer's arguments? The debate about recording jury deliberations reveals that questions such as these are hotly contested and not easily resolved. Both sides make plausible claims. This fact suggests that such questions will be difficult for lawyers in individual cases to resolve. The New York Times recently ran a story detailing the testing done and the many experts consulted by Martha Stewart's legal team in planning a media campaign coordinated with her recent trial. How many lawyers will have access to such resources in deciding whether and how to have a client interact with the media?

Confidentiality. The taping of jury deliberations poses no apparent risk to confidentiality. But the agreement in Echols poses a serious risk to confidentiality. The most obvious is the client being interviewed. Anything the client says is a potential admission, even if the client chooses not to testify at trial. And if the client does testify, statements made during the interview could be used for impeachment during cross-examination. Even if the interview is not broadcast until after the trial is over, the filmmakers and camera operators will know about the client's statements. If the prosecution is aware of the taping of such an interview, it might subpoena the tape or the film crew. If there is a mistrial or a retrial after a reversal on appeal, the broadcast version could provide admissions and material for cross-examination at the retrial.

If the filming includes defense strategy sessions, such as one mentioned in Echols about whether or not to call a certain witness, the tape and the film crew are potential avenues for such strategic information reaching the prosecution.

Conflict of interest. Are the incentives created by situations such as Echols serious enough to warrant a prophylactic approach? Or should courts simply look for evidence that such incentives actually impaired the lawyer's conduct in the particular case?

As with lawyers themselves entering into media deals, the incentives here are mixed and courts will likely continue to take the second option and simply look for evidence that the perverse incentives negatively affected the lawyer's conduct. But lawyers who find themselves in such situations should be aware of the risks those situations pose in order to guard against them.

Procedural justice. The prosecutor might have a number of reasons to object to enhanced media exposure in the form of recording jury deliberations for broadcast or a media deal by a defendant. First, the prosecutor may conclude that the enhanced exposure creates a strategic disadvantage for the government. Second, the prosecution has an interest in eliminating grounds for possible appeal. The prosecutor also has an ethical duty to ensure that proceedings are fair to the defendant. Comment 1 to Rule 3.8 explains that the prosecutor has a "specific obligation to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." Finally, concern that perverse incentives created by a media deal may influence the defense lawyer's conduct may motivate the prosecutor to object.

A court is likely to give the prosecutor standing to object to the recording of jury deliberations, as the Texas trial and appellate courts did in the Harrison case. In fact, the prosecutor eventually prevailed and prevented the recording of jury deliberations in that case. It is less certain whether courts might give prosecutors any voice concerning media deals involving a defendant. The special role of the prosecutor mentioned above is the premise for giving prosecutors standing to raise possible conflicts of interest of defense counsel. A court might give a prosecutor similar standing to object to a media deal involving a defendant, especially if the court views the deal as creating significant conflict of interest for the defense lawyer.

Conclusion

A lawyer's initial intuitive response might be that a client's agreement to increased media scrutiny poses no ethical risks for the lawyer. But the Harrison case and the ethical issues raised above show that such an assessment is faulty and that lawyers need to approach such situations with an awareness of the ethical risks they pose. Courts and legislators might also take note of those risks in deciding questions such as the taping and broadcast of jury deliberations. Judges and lawyers will likely grapple with more cases like those involving Harrison and Echols in the coming years.


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