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Criminal Justice Magazine
Summer 2004
Volume 19 Number 2

ETHICS
Trial by Media: Arguing Cases in the Court of Public Opinion

By Peter A. Joy and Kevin C. Munigal

Peter A. Joy, is a professor of law and director of the Criminal Justice Clinic at Washington Uinversity 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.

Prosecutors and defense lawyers have often sought to use the media to shape public opinion and tilt the scales of justice. Courts and the bar have attempted to check these efforts by regulating publicity in ways that balance the competing interests of fair trial, free speech, and the public’s right to be informed.
On the one hand, traditions of free speech and the role of lawyers as zealous advocates have led the courts and bar authorities to acknowledge that in some instances comments to the press or others outside of the courtroom are necessary to protect the rights of the client. On the other hand, the concept of lawyers as officers of the court supports regulations limiting extrajudicial comments so that the right to a fair trial and orderly administration of justice are protected.
This column discusses the policy debate, history, and current ethics rules concerning public comment by lawyers. It also identifies some areas of ambiguity in the law and ethics rules regulating lawyers advocating in the court of public opinion.

Should public comment by lawyers
be regulated?

The danger publicity poses to legal proceedings has been a long-standing concern for a number of reasons.
Protecting trials. Our criminal justice system is premised on the view that jurors and judges should resolve cases free from the direct influence of public opinion. In an early trial publicity case, Justice Holmes stated, “The theory of our system is that the conclusions to be reached in a case will be induced by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” (Patterson v. Colorado, 205 U.S. 454, 462 (1907).) Under this view, jurors are to decide cases based solely on the information they learn at trial—information that satisfies evidence rules and has been subjected to trial guarantees of trustworthiness such as oath and cross-examination. Publicity surrounding a trial increases the risk that jurors will decide cases based on information learned outside the courtroom that is untrustworthy or inadmissible.
Our system is also premised on the view that jurors should decide cases based on the applicable law. Publicity creates a risk that the jurors’ verdict will conform to public sentiment rather than the law.
The fairness of a trial also depends on judges making decisions based on the law and information they obtain through a litigation process that gives both sides equal opportunity to present information and to respond to information presented by an opponent. Public comment may generate publicity that pressures a judge to ignore the law if it requires him or her to render an unpopular decision. It may also give the judge information unfavorable to one party without that party having an opportunity to comment and respond.
Witness testimony is the primary source of evidence in our trial system. Publicity may make witnesses hesitant to come forward or to testify, particularly if they feel their testimony may help an unpopular defendant. Witnesses who do testify may consciously conform their testimony to what they learn through publicity, or unconsciously conflate their original perceptions with what they learn through the public comment of lawyers.
The lawyers representing the parties present a particular danger to the functioning of jurors, judges, and witnesses because prosecutors and defense lawyers are likely to have access to inadmissible information, such as the defendant’s confession or refusal to take a lie detector test, or the prior sexual conduct of a complainant. Public comment by a prosecutor may also damage the due process rights of defendants by airing information about the defendant that would be inadmissible at trial and inflame potential juror prejudices.
Protecting clients. Regulating public comment by lawyers may also serve to protect their clients. The public comments of a lawyer could damage a client in various ways. The lawyer may reveal confidential information, reveal strategy, or make a statement that could later be used as an authorized vicarious evidentiary admission. Public comment might lead the lawyer to take an early strategic position (such as mistaken identity or self-defense) without complete information only to be forced to abandon that position later with a consequent loss of both lawyer and client credibility.
The lawyer’s own desire for notoriety and not a client’s best interests may improperly influence a lawyer’s decision to engage in public comment. The adage that “any press is good press as long as they spell my name correctly” illustrates the incentive that could prompt a lawyer to welcome media attention in a case for the purpose of generating new legal business, increasing name recognition for possible elected office, or simply ego gratification.
Although public comment poses risks of harming the client, cutting against a ban on lawyer public comment is the fact that it may be necessary to protect a client’s reputation. When a person is charged, the state is saying that it believes the defendant is guilty. If the defense lawyer fails to comment, the public may interpret the defense lawyer’s silence as an admission of guilt. In addition, if publicity is likely to impact jurors, the judge, and witnesses, then a lawyer’s failure to comment and present the client’s side may have the effect of ensuring that the publicity the case receives is skewed unfairly against the client.
Protecting the public. When lawyers who represent the parties engage in public comment, they are under great pressure to “spin” the facts and law favorably to their clients. This creates great risks that they will distort the facts and law in a way that misinforms the public. The public has an interest in being informed, but that interest is not served when the lawyers’ comments misinform the public. For example, Arthur Andersen set up a public Web site urging an end to the criminal investigation and posted a background paper prepared by its lawyers asserting “factual and legal errors” in the government’s case. As Professor Kathleen Brickey has shown in a recent law review article, that paper was inaccurate and misleading on a number of points. (Kathleen F. Brickey, Andersen’s Fall from Grace, 81 WASH. U. L.Q. 917 (2003).)
Lawyers who do not represent the parties are typically free to comment and thus are available to inform the public about the legal issues in the case without having a fiduciary responsibility to a client. Today, most TV networks have stables of expert legal commentators who can describe and explain the law without creating the risks generated by having the lawyers who represent the parties comment.

History of ethics regulation
Alabama adopted the first ethics code in 1887. It advised against statements to the press, and this principle appeared in the ABA’s first set of ethics rules, the 1908 ABA Canons of Legal Ethics. Canon 20 provided: “Newspaper publications by a lawyer as to the merits of pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned.” Canon 20 recognized that “extreme circumstances” might justify publication, but that it was “unprofessional to make it anonymously.” Although these early ethics rules discouraged extrajudicial comments, they were vague and rarely enforced.
Through the first half of the twentieth century, cases such as the Sacco and Vanzetti murder trial and the Lindbergh kidnapping trial attracted great publicity, raising questions of whether the intensive media coverage that was largely unfavorable to the defendants influenced jury verdicts. In Sheppard v. Maxwell, 384 U.S. 333 (1966), Doctor Sam Sheppard was convicted in a highly publicized trial of murdering his wife. The Court reversed his conviction finding that publicity in the case was prejudicial. The prosecution and law enforcement officials repeatedly made evidence available to the media that was not admissible at trial, such as the Sheppard’s refusal to take a lie detector test and that there was a “bombshell witness on tap.” (Id. at 360-61.) The Court noted that the press publicized gossip as “evidence” and statements by Sheppard, his family, and his lawyers to the press compounded the problem. The Sheppard case established the standard that when there is a “reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should take steps such as continuing the trial, changing venue, or sequestering the jury.” (Id. at 363.) In extreme cases a new trial should be ordered. The court stated that a statement by counsel “affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.” (Id.)
Prior to Sheppard, out-of-court statements by lawyers concerning pending matters were usually regulated by the “clear and present danger” First Amendment test to justify the prior restraint of speech. The shift in Sheppard to the standard of “reasonable likelihood” of prejudicing a fair trial signaled a lower First Amendment protection for lawyer speech. In the wake of Sheppard, both the ABA and the states reevaluated their ethics rules and many imposed more specific restrictions on lawyer public comment.
Twenty-five years after Sheppard, the Supreme Court in Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), explicitly confronted whether extrajudicial speech by a lawyer must pose a “clear and present danger” to a legal proceeding to justify a disciplinary sanction, or whether a lesser standard suffices. Dominic Gentile represented a storage facility owner charged with stealing drugs police had stored as evidence, and the case drew a great deal of publicity prior to the indictment. (Id. at 1039.) Immediately after the indictment was issued, Gentile held a press conference to counter adverse publicity about his client. He asserted his client’s innocence, impugned the motives of some prosecution witnesses, and suggested that some police officers might be responsible for the theft. (Id. at 1045.) The Nevada Supreme Court affirmed a state bar disciplinary board recommendation that Gentile receive a private reprimand based on a Nevada rule that prohibited statements “substantially likely” to prejudice a proceeding. A closely divided U.S. Supreme Court overturned the discipline on vagueness grounds, but upheld the “substantially likely” standard. (Id. at 1048, 1063.)

Current ethics rules regulating pretrial and
trial publicity

Subsequent to Gentile, the ABA and several states modified their ethics rules to provide more guidance and to balance better the First Amendment rights of lawyers, the defendant’s right to a fair trial, and the public’s right to information. The current version of Model Rule 3.6, followed by more than 40 states, restricts a lawyer “who is participating or has participated in the investigation or litigation of a matter” from making out of court statements that the lawyer “knows or reasonably should know” will be publicly disseminated and “will have a substantial likelihood of materially prejudicing” a proceeding in the matter. Thus, lawyers involved in a case may not make statements calculated to influence the adjudication of a matter. Model Rule 3.6 does not apply to lawyers who have not and are not participating in the investigation or litigation of the case.
Model Rule 3.6 states seven classes of information that a lawyer may publicly state in a criminal case: 1) the claims involved and identities of the persons involved; 2) information contained in a public record; 3) that an investigation is in progress; 4) scheduling or results of any step in the litigation; 5) request for assistance in obtaining evidence or information leading to evidence; 6) warning of danger concerning the behavior of a person involved when there is reason to believe there is a likelihood of substantial harm to an individual or the public interest; or 7) information about the accused, such as name, identity, information necessary to apprehend the accused, the time and place of arrest, and the identity of the investing officers or agencies and length of the investigation.
Comment 5 to Model Rule 3.6 identifies six categories of statements that are “more likely than not to have material prejudicial effect on a proceeding.” Those matters are: 1) statements about the character, credibility, reputation or criminal record of a party, suspect, witness, the identity of a witness, or the expected testimony of a party or witness; 2) the existence or contents of a confession or admission, or the statement of defendant or suspect or refusal to give a statement; 3) results of any examination or test, the refusal of failure to submit to the examination or test, or the identify or nature of physical evidence expected to be presented; 4) any opinion of guilt or innocence of the defendant or suspect; 5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or 6) the fact that a defendant has been charged with a crime, unless the statement explains “that the charge is merely an accusation and the defendant is presumed innocent until and unless proven guilty.”
In addition to the categories of acceptable and unacceptable extrajudicial statements, Model Rule 3.6 contains a fair reply clause and that permits a lawyer to “make a statement that a reasonable lawyer would believe is required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client” provided the statement is “limited to such information as is necessary to mitigate the recent adverse publicity.”
Prosecutors must follow Model Rule 3.6 and have a special responsibility under Model Rule 3.8(f) to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.”
In addition to Model Rules 3.6 and 3.8, Model Rule 8.4 states that it is professional misconduct for a lawyer to “knowingly assist or induce another” to violate a Rule of Professional Conduct. Thus, neither a prosecutor nor defense lawyer may enlist others to disseminate information prohibited by Rule 3.6.
Enforcement of the ethics rules regulating extrajudicial speech usually occurs in very clear cases, and much of the regulation is left to trial judges employing gag orders and contempt powers. In addition, there are some areas of pretrial and trial publicity where regulations of lawyers’ speech do not reach.

Borderline issues
The recent trials of Martha Stewart and Arthur Andersen illustrate a phenomenon of clients waging media campaigns to influence the government and to sway public opinion. In both cases, the clients engaged public relations firms and sought to pressure the government not to prosecute. In addition to issuing press releases arguing their innocence, both Stewart and Andersen started Web sites. In both instances, their lawyers appeared to play some role in shaping the public message that coincided with the legal defenses to be used if the cases reached court, but the extrajudicial speech was usually that of the clients and not the lawyers.
Another borderline issue is the use of pleadings to reveal matters prohibited by the ethics rules. For example, some defense lawyers use pleadings to reveal the prior sexual or mental histories of complainants, knowing that this material will likely be inadmissible but will find its way into the press. Similarly, some prosecutors will use pleadings to reveal the prior criminal history and uncharged bad acts of defendants.
Although prosecutors have an ethical duty to prevent law enforcement and others associated with the prosecution from making statements the prosecutor cannot make, many high profile cases involve “leaks” of information that is prohibited under ethics rules. Defense lawyers do not have a corresponding duty to prevent clients from talking with the press, and it is not clear that requiring such regulation via an ethics rule could ever be employed effectively and legally given clients’ First Amendment rights.

Conclusion
Silence may be the safest policy for protecting a client from harm and a lawyer from discipline or sanctions. But, many prosecutors and defense counsel periodically have to decide whether speaking to the media is ethically permissible and in the interests of their clients, for example, to counter assertions by the press, law enforcement officials, or opposing counsel. When they do, they need to weigh the potential risks and rewards carefully.

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