Media Issues and High Profile Cases

Thomas G. Briody, Esq.

Law Offices of Thomas G. Briody, Providence

Scope Note

This chapter guides the reader in the details of handling cases before the media. It covers the contrast between Sixth Amendment rights and the constitutional and common law right of access, among other topics of interest to lawyers who try high-profile cases.

§ 20.1            Introduction

The call about a high-profile case may come at any time. You might be sitting in your office, at home watching television, or even out on a boat trying to catch a fish. The more your guard is down, the more likely, it seems, that someone will reach out to you about a big case, a monster case, a case involving media, and requests for interviews, and efforts to learn about a new client, and a new matter that is unlike anything you have ever handled before.

But dealing with the media is like handling a double-edged sword—the potential is there to help your client, but so is the risk that you or your client may say something that will be misunderstood or that will limit the ability to defend the case later on. It is dangerous and tricky, and more than a little intimidating.

This chapter deals with representing a client who is suddenly and intensely in the public eye, accused of violating the criminal law. I write from personal experience, after working as a television reporter for ten years and practicing as a criminal defense attorney for more than twenty-five. As a reporter, I chased defendants and the lawyers who represented them. As an attorney, I have represented a fair number of high-profile clients. What follows is intended to help defense attorneys avoid mistakes that may hurt their client and their own reputation.

§ 20.2            Practical Considerations in Handling the Media

§ 20.2.1        Understanding and Dealing with Reporters

Many lawyers view reporters with a mixture of fear and contempt. Maybe it is because the lawyer has been poorly treated by a reporter in the past, or because of perceived unfairness and bias in the media. A hostile attitude can create a host of problems for counsel representing a high-profile defendant and, more significantly, for the defendant. It is important to understand reporters and what motivates them.

For the most part, reporters are educated and hardworking. They often are underpaid, and frequently motivated more by curiosity about the news of the day and a desire to inform the public than they are by money. Reporters also are human. They are ambitious and competitive and are looking for stories that people will want to see, hear, or read about. A reporter wants to be the first with the story, if possible, and frequently faces considerable pressure from editors, producers, and news directors to get the story quickly and on a deadline. While journalists may want to be objective, they also face pressure to produce a story that sells. The digital age has created numerous problems for the journalism industry. Newspapers are smaller than they once were, and reporters are expected to “do more with less.” Like anyone else, reporters also want to be treated with respect and courtesy. The criminal defense attorney must factor in all of this when dealing with them.

While it is fine to respect reporters and maintain good relations with them, when defending someone accused of a crime it is usually perilous to view reporters as allies or “friends.” Janet Malcolm, in her book The Journalist and the Murder, described the work of reporters as “morally indefensible” and the role of a writer as “a kind of confidence man, preying on people’s vanity, ignorance, or loneliness, gaining their trust and betraying them without remorse.” Janet Malcolm, The Journalist and the Murder 1 (Knopf 1990). The reporter’s job is to get the story—that means everything, including items and information that will hurt your client. A reporter is not hampered by rules of evidence and is unlikely to be concerned with a lawyer’s notion of “prejudice.” This problem is made worse by social media. Very few editors have control over Twitter, Facebook, and other providers that have an endless appetite for new content.

The lawyer’s job as defense counsel is to present the client in the most favorable light, to limit prejudicial information, and to avoid statements that may come back to haunt a defendant. The competing roles of reporter and defense counsel almost always are incompatible.

In my opinion, the best approach when dealing directly with the media is to be respectful but cautious. To ignore or abuse a reporter would be foolhardy—even the most compassionate journalist will find it difficult to remain objective when confronted by rude clients or, worse, rude and imperious attorneys. The same golden rule applies to both attorneys and their clients: be polite, even when stating that there will be no comment.

§ 20.2.2        Knowing the Limits of What Can and Cannot Be Said

Attorneys are often attracted by the thought of giving an interview about a high-profile case. There is an adrenaline rush that comes from being the center of attention, and most trial lawyers want the focus to be on their cause, their client’s position. So, too, the interview is a chance at free publicity for the lawyer.

With the benefit of reflection and experience, I have learned a few simple truths: First, a criminal defendant client will almost never enjoy the experience of being the subject of a news story about his or her alleged crime, and the client will resent the attorney if he or she perceives that the attorney is enjoying it. Second, every time an attorney talks about a case, the risk of prejudicing a potential juror increases. There may be any number of scientific or sociological studies on the subject, but the bottom line is that it is human nature to remember the negatives in a news story about criminal defendants more than the positive. Further, it is nearly impossible to bring up the wonderful things a defendant has done without mentioning the criminal charge he or she faces. Third, what one says outside of court will frequently educate your adversary and limit your options. Talking about your client’s defense will tip off the prosecutor. If you make a commitment about your client testifying, you may back yourself into a place you later decide you do not want to be. None of these are helpful to your client.

Equally important are the professional limits placed on attorneys. Rule 3.6 of the Rules of Professional Conduct prohibits counsel from making an extrajudicial statement that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

There are a number of exceptions to this rule, but the most important is in Subsection (c), which permits a statement that “a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”

Unfortunately, the rule does not define “substantial undue prejudicial effect.” In considering whether your client has suffered “substantial undue prejudicial effect,” it is helpful to consider what Rule 3.6(c) does not mean. It does not mean that it is time to make a statement merely because the media has reported that the defendant is charged with a crime. All criminal charges are prejudicial and news reporting about criminal charges is almost always prejudicial, at least to some degree. Similarly, a statement is not warranted merely because a defendant’s name appears in more than one or two news cycles on television or in the paper. On the other hand, a steady barrage of negative publicity may require the attorney to take action to protect his or her client. Although there is no formula for determining when there has been prejudice to a client that is both substantial and undue, to paraphrase the late Justice Potter Stewart, you will know substantial undue prejudicial effect when you see it.

§ 20.2.3        Knowing What to Say and Not Say

So what do you say? My answer: as little as possible. The only thing on your mind should be defending the person you represent, not appearing on Tucker Carlson’s or Rachel Maddow’s shows or Fox News. Also, keep in mind that a Rule 3.6 statement is about maintaining a level playing field. Keep it short and overcome any impulse to be pithy, or clever, or to audition for potential clients. Unless you are representing an elected official who hopes to run for office again, or a celebrity or other individual whose career or livelihood depends on public opinion, you should not attempt to persuade your audience of your client’s innocence. As a general rule, it is far better to rely on the presumption of innocence, and focus your comments on alleviating the unfair prejudice to your client.

Remember: cases should be tried in the courtroom. There is no particular list of things an attorney should or should not say, and you can certainly be creative, but it is best to say only what you need to say to remind the viewer or reader that criminal litigation is part of a process, a system with a goal of producing fair and just results. Examples may include the following:

Ÿ  “My client disputes these charges.”

Ÿ  “We do not agree with the State’s characterization of the evidence. We will respond in the right place, at the right time.”

Ÿ  “As a society we’ve agreed that criminal defendants deserve fair treatment. That’s what I’m asking for on behalf of my client: fair treatment.”

Ÿ  “We will address these charges in the appropriate forum: a courtroom.”

Ÿ  “We do not wish to debate this case outside of court. That’s what a trial is for.”

If these comments seem bland, it is because they are intended to be. In almost every case, you do your client very little service if you present his or her defense outside the courtroom.

This is not to suggest that you must never say anything of substance—but less is more. If you absolutely, positively believe you must make a reference to facts pertaining to your case, try your best to make a reference to a fact that is beyond dispute. You want people reading your statement or hearing your comment to be able to rely on what you have said. You want them to be able to trust your position. The more you say, the more there is to question, to challenge, to rebut.

Finally, do not answer questions. Remember all those 60 Minutes interviews where someone gets tripped by Scott Pelley or Anderson Cooper? In every one, it was the result of a question. If you do not answer a question, it is much more difficult to point out any weakness your position might have. Save your answers for the courtroom. That is where they will count the most.

In nearly twenty-five years of practice, I can think of only two occasions when it appeared necessary to give a statement to the media before trial about facts pertaining to a client’s case. In both cases the statements were limited, and I answered no questions. In both cases the media coverage subsided, and my clients benefitted in the end.

§ 20.2.4        Should Your Client Talk to the Media?

For all the reasons discussed above, the answer is almost always an emphatic no. Any potential benefit gained in humanizing your client is vastly outweighed by the risk.

§ 20.2.5        What About When the Case Has Concluded?

What about when a hearing or trial is over? At that point the restrictions are considerably more relaxed. The potential to influence a proceeding is diminished, if not eliminated. Still, it is wise to keep your comments to a minimum. If the client has been convicted, there is always the possibility of a successful appeal. Further, it is probably not a good idea to criticize the court, the jury, or your adversary. If you have managed to obtain an acquittal, gloating is to be avoided. No one likes an ill-mannered winner or a poor loser.

§ 20.3             The Sixth Amendment Versus Constitutional and Common Law Right of Access

No discussion of media issues and high-profile cases would be complete without some mention of the tension between a defendant’s Sixth Amendment protections and the public’s constitutional and common law right of access to the courts, and the judiciary’s role in balancing the competing interests of the public, the media, and criminal defendants.

Courts have long recognized the public’s common law right of access to the courts, and varying procedural and substantive tests have emerged from the courts’ public-access-to-criminal-trial cases aimed at striking a balance between preserving the openness of judicial proceedings and protecting a criminal defendant’s Sixth Amendment guarantees. See State v. Cianci, 496 A.2d 139 (R.I. 1985). Predictably, the result has been tension between the media and the judiciary itself. See Weisberger, “A Tale of Two Privileges,” 15 Suffolk U.L. Rev. 191 (1981). In Gannett Co. v. DePasquale, 443 U.S. 368 (1979), in which the Gannett newspaper company sued a New York state trial judge, characterizing his decision to exclude press from a criminal trial as unconstitutional prior restraint, the Supreme Court of the United States cited the public interest in the administration of justice and acknowledged the public’s interest in an open trial. Gannett Co. v. DePasquale, 443 U.S. at 384, 391. However, the Court also determined that the Sixth Amendment right to a public trial is for the benefit of the defendant, Gannett Co. v. DePasquale, 443 U.S. at 381, and that members of the public do not have a Sixth or Fourteenth Amendment right to attend a criminal trial, Gannett Co. v. DePasquale, 443 U.S. at 391. The Court also distinguished between pretrial proceedings and actual trials, observing that many states routinely close pretrial proceedings to the public. Gannett Co. v. DePasquale, 443 U.S. at 390–91. Although the Court in Gannett did not decide whether the pubic possessed a First Amendment–based right of access to criminal trials, Gannett Co. v. DePasquale, 443 U.S. at 392, that question was answered in the affirmative in Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. 2814, 2821–29 (1980). However, the Court, in a footnote 18 of the plurality opinion, stressed that the First Amendment right to attend a trial is not absolute but may be curtailed in the presence of sufficiently countervailing considerations. Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. at 2830 n.18 (plurality opinion by Burger, C.J.); see also State v. Dale, No. P2/1992-2010A (R.I. Super. Aug. 11, 2015) (third parties may not intervene in a criminal proceeding) (relying on Providence Journal Co. v. Superior Court, 593 A.2d 476, 447, n.1 (R.I. 1991)).

Accordingly, the criminal defense attorney must be mindful of the trial court justice’s duties and responsibilities in high-profile cases. Where media coverage has the potential to substantially prejudice the defendant, a trial court justice may use various methods to protect the defendant’s right to a fair trial. However, in doing so the court must balance the countervailing right of the public to obtain and disseminate information.

§ 20.3.1        Cameras in the Courtroom

It is a fact that cameras, cellphones, iPads, and smartphones are ubiquitous in this age. The use of cameras in and out of the courtroom pose their own considerations.

The use of electronic devices is highly regulated in most courts, and Rhode Island is no exception. Consistent with the need to balance the interests of the defendant and the public, Article VII of the Rules of the Rhode Island Supreme Court governs the manner in which court proceedings may be broadcast, and vests the trial justice with the sole discretion to control or prohibit photographing or broadcasting the participants in a court proceeding. Article VII, Canon 11, Rhode Island Supreme Court Rules. The trial justice’s authority in this regard is virtually absolute; there is no review by the presiding justice, the chief judge of the trial justice’s court, or by the Supreme Court. Article VII, Canon 11, Rhode Island Supreme Court Rules.

In my experience, many trial justices are reluctant to close a courtroom to cameras or still photographers. But some trial justices will more readily prohibit or limit the use of cameras—particularly if the cameras carry the potential to interfere with a defendant’s right to a fair trial. One longtime Rhode Island jurist feels, with considerable justification, that “everyone in a courtroom behaves differently” when a camera records the proceedings. However, that truism likely will erode as the presence of cameras in society becomes more the norm. Regardless, the practitioner is well advised to find out a particular trial justice’s views in advance of any hearing or trial.

There also are specific controls on video and still photography at a trial. Images of jurors and prospective jurors are severely limited. Article VII, Canon 10, Rhode Island Supreme Court Rules. The trial justice may prohibit images of young, vulnerable, or sensitive witnesses. Article VII, Canon 11, Rhode Island Supreme Court Rules. Not more than one video and/or still camera is permitted in a proceeding at any time. Article VII, Canon 7, Rhode Island Supreme Court Rules. If the court makes rulings about what cameras can and cannot photograph, keep an eye out for potential violations. A violation could easily affect a defendant’s right to a fair trial, and may provide grounds for a mistrial. It is also important to keep in mind the use of “smartphones” by members of the media and the public. The easy availability of this technology poses significant risks to criminal defendants. But anyone who enters a courtroom is subject to the requirements of Article VII.

Practice Note

It also is wise to spend some time anticipating how potential visual media coverage will affect your case. For example, just as you would consider your client’s appearance at counsel table and its effect on the jury, you should consider the effect of visual media coverage of your client’s arrival at the courthouse, the vehicle he or she uses, and coverage of others who may be attending the trial in support of your client. Avoid, as much as possible, giving the media a compromising photo opportunity.

§ 20.4           Change in Venue and Alternatives to Change in Venue

§ 20.4.1        The Rhode Island Market: Change in Venue Is Dead

When I was a law student in the 1980s, I worked for a CBS television affiliate in Cedar Rapids, one of the biggest cities in Eastern Iowa. A murder case in that era was big news, and dominated local coverage. Almost invariably, any murder case would be moved to another part of the state, usually several hundred miles away, to avoid the prejudice that accompanied publicity about the case. That is just the way it was in the Midwest, where some states have 100 or more counties.

Rhode Island is different: It is roughly forty-five miles wide and forty-five miles long, has just five counties, and criminal cases are divided among four courthouses. If your case has enough profile, you can be sure it will receive saturation coverage from The Providence Journal, Boston newspapers, the Associated Press, local television (often including Boston channels), and radio. Further, the role of bloggers and Internet coverage cannot be ignored in this information age, nor can one assume that someone standing outside a courtroom with a cellphone camera will not be trying to post a video on YouTube. This kind of scrutiny always has the potential to prejudice your client’s right to a fair trial.

Rule 21(a) of the Superior Court Rules of Criminal Procedure provides for transfer of a case where the court is satisfied that “there exists in the county where the prosecution is pending so great a prejudice . . . that he or she cannot obtain a fair and impartial trial[.]” However, in an age of cable television, satellite radio, and the Internet, in a state dominated by just one newspaper/website, there are few options. A change in venue from Providence to Newport likely will be meaningless. As the saying goes, you can run but you can’t hide.

§ 20.4.2        Alternatives to Change in Venue

An alternative to changing venue is a motion for continuance, to allow for the story and its accompanying emotional prejudice to fade from blogs and airwaves.

In some circumstances, and notwithstanding countervailing First Amendment pressures, it also may be possible to move to seal discovery materials, limit access to the pretrial proceedings or trial, or obtain other protective orders on behalf of a defendant in order to protect the accused’s Sixth Amendment right to a fair trial. See State v. Cianci, 496 A.2d 139 (R.I. 1985). However, although the court has the right to exclude or limit public access to discovery materials, pretrial
proceedings, and the trial, the trial justice must make specific findings. State v. Cianci, 496 A.2d at 144 (four-part inquiry for protective order must (1) be narrowly tailored to serve the interests to be protected; (2) be the only reasonable alternative; (3) permit access to parts of the record not deemed sensitive; and (4) be accompanied by specific findings explaining necessity of order). Additionally, the court’s authority must be “cautiously exercised.” State v. Cianci, 496 A.2d at 142. See also § 20.3, above.

A highly effective response to the prejudice caused by pretrial publicity is the jury questionnaire. Judges will often prefer questionnaires in appropriate cases because they speed up voir dire. But a well-framed questionnaire can also assist counsel in getting candid answers from the venire about publicity and prejudice. Defense counsel should make every attempt to keep the responses of potential jurors private in an effort to achieve this goal. See State v. Derderian, Dkt. 06-835 (R.I. Super. 2006) (denying media request for disclosure of juror questionnaires but permitting disclosure of blank questionnaire).

§ 20.5              Conclusion

In sum, there are four basic truisms about pretrial publicity in Rhode Island:

Ÿ  change of venue will not help;

Ÿ  a continuance, and a jury questionnaire, will help;

Ÿ  fighting back is a temptation to be resisted; and

Ÿ  the court’s ability to restrain the media is limited.

There are also five simple rules for dealing with the media:

Ÿ  treat journalists respectfully;

Ÿ  do not trust them;

Ÿ  say as little as possible;

Ÿ  take no questions; and

Ÿ  when tempted to ignore these rules, read them again.

EXHIBIT 20A—Rule 3.6 of the Supreme Court Rules of Professional Conduct—Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved:

(2) information contained in the public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest;

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).