Good TV Makes Bad Justice: How the Rules of Professional Conduct Can Protect Fair Trial Rights

Author:Joshua Irwin
Position:J.D., The University of Iowa College of Law, 2017; B.A., The University of Iowa, 2009
Pages:2325-2356
SUMMARY

When prosecutors share information related to a criminal investigation with media production companies, and the media companies broadcast that information in the form of true-crime reality shows before the accused has been tried, fair trial rights that serve as a cornerstone to the American judicial system are jeopardized. The history of American jurisprudence regarding balancing the media's... (see full summary)

 
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2325
Good TV Makes Bad Justice: How the
Rules of Professional Conduct Can Protect
Fair Trial Rights
Joshua Irwin*
ABSTRACT: When prosecutors share information related to a criminal
investigation with media production companies, and the media companies
broadcast that information in the form of true-crime reality shows before the
accused has been tried, fair trial rights that serve as a cornerstone to the
American judicial system are jeopardized. The history of American
jurisprudence regarding balancing the media’s First Amendment rights with
criminal defendants’ Sixth Amendment rights has been shaped in large part
by cases concerning requests for restraints upon news agencies. Courts
typically view these restraints skeptically, which reflects the high value this
nation places on the contributions a free press makes to democracy. The
development of true-crime reality shows necessitates a different approach
because of risks of hindering fair trial rights, interfering with the
administration of justice, and potentially subjecting police and local
governments to civil liability. Arguably, the Model Rules of Professional
Conduct and their various state counterparts already prohibit attorneys and
prosecutors from providing information to these true-crime television
companies, but shows that clearly rely on inappropriate disclosures continue
to pervade the airwaves. This Note proposes that comments should be added
to the Model Rules to make clear that sharing sensitive information that will
be broadcast in true-crime reality shows prior to trial will not be tolerated and
will lead to attorney sanctions.
* J.D., The University of Iowa College of Law, 2017; B.A., The University of Iowa, 2009. I
would like to thank everyone who helped during the writing process, especially the writers and
editors of Volumes 101 and 102 of the Iowa Law Review, for their invaluable assistance. Special
thanks to the attorneys and staff of the Johnson County, Iowa office of the State Public Defender,
for showing me what zealous advocacy looks like.
2326 IOWA LAW REVIEW [Vol. 102:2325
I. INTRODUCTION ........................................................................... 2327
II. TRUE-CRIME ENTERTAINMENT MEDIA THREATENS TO SKEW
THE BALANCE BETWEEN THE FIRST AND SIXTH
AMENDMENTS ............................................................................. 2330
A. MODERN COURTS STRUGGLE WITH THE TENSION BETWEEN
FIRST AMENDMENT AND SIXTH AMENDMENT RIGHTS ............. 2330
B. TRUE-CRIME ENTERTAINMENT MEDIA: HISTORY,
POPULARITY, AND A NEW VERSION OF AN OLD PROBLEM ......... 2333
C. THE MODEL RULES OF PROFESSIONAL CONDUCT PROVIDE
GUIDANCE REGARDING THE PRESERVATION OF SIXTH
AMENDMENT RIGHTS ............................................................ 2337
1. Model Rule of Professional Conduct 3.6: “Trial
Publicity” ...................................................................... 2337
2. Model Rule of Professional Conduct 3.8: “Special
Responsibilities of a Prosecutor” ................................ 2338
III. PROSECUTORS AND POLICE WHO PARTICIPATE IN REALITY
ENTERTAINMENT MEDIA ARE JEOPARDIZING DEFENDANTS
FAIR TRIAL RIGHTS, INTERFERING WITH THE ADMINISTRATION
OF JUSTICE, AND SUBJECTING STATE AND LOCAL
GOVERNMENTS TO POTENTIAL CIVIL LIABILITY ......................... 2340
A. TRUE-CRIME ENTERTAINMENT MEDIA AFFECTS SUSPECTS
FAIR TRIAL RIGHTS ............................................................... 2340
1. True-Crime Reality Shows Can Generate Jury Prejudice
2341
2. True-Crime Reality Shows Create a Risk that
Witnesses Will Testify Inaccurately ............................ 2344
B. TRUE-CRIME ENTERTAINMENT MEDIA INTERFERES WITH THE
ADMINISTRATION OF JUSTICE ................................................. 2346
C. TRUE-CRIME ENTERTAINMENT MEDIA RISKS SUBJECTING
STATE AND LOCAL GOVERNMENTS TO EXPENSIVE CIVIL LIABILITY
2348
IV. COMMENTS SHOULD BE ADDED TO MODEL RULES OF
PROFESSIONAL CONDUCT 3.6 AND 3.8 TO MAKE CLEAR THAT
SHARING INFORMATION WITH TRUE-CRIME REALITY SHOW
PRODUCTION COMPANIES CONSTITUTES AN ETHICAL VIOLATION
.................................................................................................... 2352
A. RULE 3.6 COMMENT PROPOSAL ............................................. 2353
B. RULE 3.8 COMMENT PROPOSAL ............................................. 2353
C. LEGAL AND POLICY JUSTIFICATIONS FOR ADDING THE
PROPOSED COMMENTS ........................................................... 2354
V. CONCLUSION .............................................................................. 2355
2017] GOOD TV MAKES BAD JUSTICE 2327
I. INTRODUCTION
In the exciting conclusion of an episode of Cold Justice, a reality show
about the investigation of cold case murders, the hosts of the show meet with
the County Attorney of Jasper County, Iowa to discuss details the hosts and
their investigators have discovered through analysis of the crime scene and
interviews with witnesses.1 The focus of the discussion is a woman named
Theresa “Terri” Supino, whom the hosts believe murdered her estranged
husband Steven and his girlfriend Melisa in 1983.2 The County Attorney
concludes this discussion by declaring that, as a result of the show’s
investigation, he is ready to indict Supino, who was interviewed by one of the
show’s hosts and a police officer earlier in the episode.3 Cameras roll as the
hosts, along with the county sheriff, meet with the victims’ teary-eyed family
members and inform them of the pending prosecution.4 The show airs
footage of police escorting a handcuffed Supino out of a building, and then
displays her mugshot.5
Cold Justice’s cameras were notably absent at the conclusion of her trial
one year later, when she was acquitted of all charges.6 While Cold Justice was
nowhere to be seen, the local press was there to capture her statement:
“[T]hey wouldn’t air the show unless they had someone in custody, and that
somebody was me.”7 At the end of this interview, Supino forcefully declared,
“I’m going to sue somebody.”8 Despite the shortcomings of the Cold Justice
Supino investigation, the show later returned to Iowa. On July 17, 2015,
cameras were again rolling when Steve Klein was arrested in Johnson County,
Iowa, following a Cold Justice investigation of the 1995 murder of Klein’s
1. Cold Justice: Copper Dollar Ranch (TNT television broadcast Mar. 28, 2014). TNT
cancelled Cold Justice in 2015, but in 2017 the Oxygen Network ordered new episodes as part of
its programming shift to solely true-crime content. Cynthia Littleton, Oxygen Surrenders to Crime
Wave in Programming Strategy Revamp, VARIETY (Feb. 1, 2017, 9:00 AM), http://variety.com/2017/
tv/news/oxygen-cold-justice-dick-wolf-crime-revamp.
2. Cold Justice: Copper Dollar Ranch, supra note 1. The victi ms were bot h killed by blunt for ce
trauma at Steven’s trailer, which was parked in an area known for high drug activity, on March 3,
1983. Id. During the show, the hosts allege that Supino wanted to get back together with her
husband and felt betrayed by his involvement with another woman. Id. This theory was developed
based on statements made by Supino’s brother Tim. Id. Supino states during an int erview that
this is not true, and that she never had any intentions other than divorce. Id.
3. Id. During the interview, the show’s primary host Kelly Siegler, a former Texas
prosecutor, states during a voiceover, “In my 22 years of all the criminal cases that I have
prosecuted, I have never seen a suspect talk so willingly, so much, and say such crazy things.” Id.
Siegler was referring to alleged contradictions between Supino’s statements and those of
witnesses, as well as Supino’s own prior statements to police. See id.
4. Id.
5. Id.
6. See Grant Rodgers, Supino Acquitted, Says: ‘Leave Me the Hell Alone’, DES MOINES REG. (Feb.
20, 2015, 2:28 PM), http://www.desmoinesregister.com/story/news/crime-and-courts/2015/
02/20/supino-murder-trial-verdict/23753543 (“Supino’s arrest was featured in the final scenes
of the episode . . . .”).
7. Id.
8. Id.

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