Chapter 4 The Media—Riding a Tiger

• Library: How to Win an Acquittal (ABA) (2011 Ed.)

CHAPTER 4 The Media—Riding a Tiger Trial Diary 4

Have I mentioned that the press in Puerto Rico is plain nuts? Every day the courtroom gallery is filled. Twenty or more seats go to reporters. They wanted cameras; Judge B. said no. They wanted laptops; Judge B. said no. They wanted 40 seats; Judge B. said no. At each court break, the reporters dash outside. There are hourly reports on radio about the court proceedings. There are morning, noon, and evening TV reports. The four main island newspapers run three to six pages of stories daily about the trial. Every morning as Luisa and I walk into the courthouse, camera people are scurrying around us, walking backward in front of us, snapping away. Reporters call out questions, much like the scene on the floor of a stock exchange where brokers climb over one another to be heard. The same drill repeats when we leave the courthouse, except I sometimes have to push the cameras aside to get Luisa into the family car. Judge B. thought the press would ease off once trial began. Judge B. was wrong.

And for certain, the truth is not getting in the way of a good story. Yesterday's papers reported that at 8:45 am today, Judge B. was throwing the case out. I liked that story. Of course, Judge B. did not toss the case. Another paper reported Judge B. was flying to Washington, D.C., to complain to the Department of Justice about the antics of the prosecutors. I liked that story too. Judge B. flew home to New Hampshire instead. Other stories speculate about how much money the Acevedo Vila team is charging and getting paid. When I read those stories, I realize I am way too cheap.

My favorite manifestation of the media frenzy this case has engendered are the talking heads—the radio and TV commentators who dissect every ruling, every piece of testimony, every objection. One show even focuses on trial fashion. Judge B. is safe in his black robe, and I've been OK in my blue and gray suits. But what they say about the women at trial is often brutal. Earlier this week, one TV show had a fortune-teller commenting on the case. Fog and dim lights were strobing across a blowup photo of me and Luisa. The fortune-teller acted as if she had gone into a trance. Her eyes rolled up. Then she started cackling, "acquittal." She kept repeating it. I really like that show.

But the smartest reporting has been on a show that features one of those insult puppets. Serious commentators talk about the trial while the puppet, which resembles Cookie Monster from Sesame Street, interrupts and ridicules their opinions. In the last show, two ex-prosecutors were trying to explain circumstantial evidence. They were talking about all the Philly testimony and the lavish dinners and the Negron illegal contributions. They started describing how broad conspiracy law is. And Cookie began chanting, "If he didn't know, let the gov go." Over and over. Every time one of the ex-prosecutors spoke. Over their backs. In between them. In front of them. It was perfect. And the most insightful analysis yet. Love that Cookie. Wish he was a juror.

INTRODUCTION

Their constant yelping about a free press means, with a few honorable exceptions, freedom to peddle scandal, crime, sex, sensationalism, hate, innuendo and the political and financial uses of propaganda. A newspaper is a business out to make money through advertising revenue. That is predicated on the circulation and you know what circulation depends on.

—Raymond Chandler, The Long Goodbye (1954)

Discussing the pros and cons of criminal lawyers interacting with the media calls to mind the fable of the boy who thought he could ride a tiger, only to end up in the belly of the beast. Responsible journalism and notions of controlling the press in the context of criminal cases too often resemble oxymoron and fantasy. It is useful to approach the question whether and how lawyers (and/or their agents) should talk to the media in three different circumstances: (1) post-indictment; (2) pre-indictment grand jury phase and/or after the client is denominated a target; and (3) pre-grand jury when some investigation of the client appears reasonably likely.

RULES GOVERNING LAWYER COMMUNICATIONS WITH THE PRESS

Most states have enacted rules that in one way or another apply to attorneys making statements to the media. Florida's rules are typical. Florida, like many states, has adopted the Rules of Professional Conduct. FL Rule 4-3.6 specifically deals with trial publicity and reads as follows:

(a) Prejudicial Extrajudicial Statements Prohibited. A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.
(b) Statements of Third Parties. A lawyer shall not counsel or assist another person to make such a statement. Counsel shall exercise reasonable care to prevent investigators, employees, or other persons assisting in or associated with a case from making extrajudicial statements that are prohibited under this rule.

The commentary to this rule identifies the problems with balancing concerns for a fair trial and with the rights of a free press:

It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

The Florida rules also require truthfulness in statements to others (FL Rule 4-4.1) and emphasize the lawyer's obligations of loyalty and confidentiality and the need to avoid conflicts of interest.

FL Rule 4-8.4 speaks directly to misconduct:

A lawyer shall not:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic;
(e) state or imply an ability to influence improperly a government agency or official;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;
(g) fail to respond, in writing, to any official inquiry by a disciplinary agency, as defined elsewhere in these rules, when such agency
is conducting an investigation into the lawyer's conduct;
(h) willfully refuse, as determined by a court of competent jurisdiction, to timely pay a child support obligation; or
(i) engage in sexual conduct with a client that exploits the lawyer-client relationship.

In Florida, lawyers take an oath of admission and swear to adhere to a creed of professionalism that echoes the above principles:

Oath of Admission to the Florida Bar
The general principles which should ever control the lawyer in the practice of the legal professional are clearly set forth in the following oath of admission to the Bar, which the lawyer is sworn on admission to obey and for the willful violation to which disbarment may be

...